5th Cir. Pattern Jury Instr. (Civil) 11.4

Third-Party Harassment Without Tangible

Employment Action (Hostile Work

Environment—Negligence)

A. Committee Notes

This charge is for cases in which the plaintiff seeks

to impose liability on an employer based on a negligence

theory. This theory requires the plaintiff to prove that

the defendant employer knew, or in the exercise of reasonable care should have known, that the plaintiff was

being harassed by a coworker or third-party and that

the harassment was sexual or contained sexually explicit overtones, or was based on race, color, religion,

national original, or gender.

1

Under a negligence theory, if the defendant employer knew or should have

known of the harassment, then the defendant had a

duty to take prompt remedial action designed to stop

it.

2

This charge can be used when the alleged harasser

is a coworker or a third-party.

3

When the alleged

harasser is a supervisor, vicarious liability for allowing

the harassment, not a negligence theory, is appropriate

1Williamson v. City of Hous. , 148 F .3d 462, 466 (5th Cir. 1998). This

charge is for use in coworker and third-party harassment cases not involving a tangible employment action. No affirmative-defense instruction is

provided. See Faragher v. City of Boca Raton , 524 U.S. 775, 807–08 (1998)

(stating that an employer may be held vicariously liable “for an actionable

hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment

action is taken, a defending employer may raise an affirmative defense to

liability or damages, subject to proof by a preponderance of the evidence”).

Faragher , 524 U.S. at 807. The defense has two parts: (a) that the

employer exercised reasonable care to prevent and correct promptly any

sexually harassing behavior; and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities

the employer provided or to “avoid harm otherwise.” Faragher, 524 U.S. at

807. The Faragher affirmative defense does not apply when the employee

complains “of harassment by someone other than a supervisor.” Beckford

v. Dep’t of Corr ., 605 F .3d 951, 960-61 (11th Cir. 2010).

2Nash v. Electrospace Sys., Inc. , 9 F .3d 401, 404 (5th Cir. 1993).

3Sharp v. City of Hous. , 164 F .3d 923, 928–29 (5th Cir. 1999).

11.4EMPLOYMENT CLAIMS

149

and Pattern Jury Instruction 11.2 or 11.3 should be

used.

4

B. Charge

Plaintiff [name] claims [he/she] was [sexually harassed] [harassed because of [his/her] [protected trait]]

by [harasser’s name] and that [his/her] employer,

Defendant [name], knew, or in the exercise of reasonable care should have known, of the harassment but

did not take prompt remedial action.

Defendant [name] denies Plaintiff [name]’s claims

and contends that [specify contentions].

It is unlawful for an employer to fail to take remedial action when the employer knew, or should have

known, that a coworker or third-party [sexually harassed an employee] [harassed an employee because of

that employee’s [protected trait]].

For Defendant [name] to be liable for [sexual

harassment] [protected-trait harassment], Plaintiff

[name] must prove by a preponderance of the evidence

that [harasser’s name] [engaged in sexual harassment]

[harassed Plaintiff [name] because of Plaintiff [name]’s

[protected trait] and:

1. the conduct was sufficiently severe or pervasive

to:

4In V ance, 570 U.S. at 444–45 & n.13–14, the Court noted that it is

confusing for jurors to have instructions on alternative liability theories

under which different parties bear the burden of proof. The Court also

noted that supervisor status will determine whether the employee has to

prove negligence in allowing the harassment or the employer has to prove

the Ellerth/Faragher affirmative defense. Although the Fifth Circuit in

Sharp examined the plaintiff’s claims against her supervisors under a

negligence standard, Sharp was tried before the Supreme Court’s decisions on vicarious liability for supervisor harassment in Ellerth and

Faragher . Sharp, 164 F .3d at 929.