9th Cir. Model Jury Instr. (Civil) 10.8

The plaintiff [name] seeks damages from the defendant [name] for a hostile work environment caused by [sexual] [racial] [other Title VII protected characteristic] harassment. The plaintiff [name] has the burden of proving both of the following elements by a preponderance of the evidence:

First, the plaintiff [name] was subjected to a [sexually] [racially] [other Title VII protected characteristic] hostile work environment by a [non-immediate supervisor] [co-worker]; and

Second, the defendant [name] or a member of the defendant [name]’s management knew or should have known of the harassment and failed to take prompt, effective remedial action reasonably calculated to end the harassment.

A person is a member of management if the person has substantial authority and discretion to make decisions concerning the terms of the harasser’s employment or the plaintiff’s employment, such as authority to counsel, investigate, suspend, or fire the accused harasser, or to change the conditions of the plaintiff’s employment. A person who lacks such authority is nevertheless part of management if he or she has an official or strong duty in fact to communicate to management complaints about work conditions. You should consider all the circumstances in this case in determining whether a person has such a duty.

The defendant’s remedial action must be reasonable and adequate. Whether the defendant’s remedial action is reasonable and adequate depends on the remedy’s effectiveness in stopping the individual harasser from continuing to engage in such conduct and in discouraging other potential harassers from engaging in similar unlawful conduct. An effective remedy should be proportionate to the seriousness of the offense.

If you find that the plaintiff [name] has proved both of the elements on which the plaintiff [name] has the burden of proof, your verdict should be for the plaintiff [name]. If, on the other hand, the plaintiff [name] has failed to prove either of these elements, your verdict should be for the defendant [name].