Federal Judicial Center and
New York University Law School
New York City
March 18, 2005

Workshop on Employment Law for Federal Judges

Jury Instructions by Richard T. Seymour*

Click here to download a PDF version of this paper

*Current information as of September 30, 2005: Law Office of Richard T. Seymour, P.L.L.C., 1150 Connecticut Avenue N.W., Suite 900, Washington, D.C. 20036-4129. Voice: 202-862-4320, Cell: 202-549-1454, Facsimile: 800-805-1065, e-mail: [email protected]. Web site: http://www.rickseymourlaw.com. This paper and other Continuing Legal Education papers can be downloaded from this site.

I am grateful to my former firm, Lieff, Cabraser, Heimann & Bernstein LLP, for the assistance needed to prepare this paper. LCHB’s web site is www.lchb.com.

Some of the information in this paper is used with permission from an upcoming edition of Richard T. Seymour and John F. Aslin, Equal Employment Law Update (Bureau of National Affairs, Washington, D.C., 2005), copyright © American Bar Association, 2005. For copies, contact BNA at 1-800-960-1220; conference attendees are entitled to a 25% discount as a benefit of Section membership. Mention priority code EQL in order to receive the discount.

Table of Contents

I. The Art of Crafting Useful Instructions

Employment lawyers on both sides do not seem to do a very

good job in thinking through the implications of jury instructions during the heat of trial; my impression from reading hundreds of appellate decisions a year is that most challenged instructions or failures to give instructions are reviewed for plain error, no one having objected at the time.

Meanwhile, I have heard a number of Federal judges say that

they rarely get useful draft instructions from counsel on either side in employment cases, because counsel often present short passages from appellate opinions divorced of their context, or pattern instructions never meant to be used in the context of the type of situation at bar.

Having served as a juror several times in the District of

Columbia Superior Court, I can testify to the unmet need for clarity. Too often, bench and bar are satisfied with instructions that are phrased in terms of art that make perfect sense to us, and that we are pleased to assume jurors will understand equally well.

Judge Posner recently observed in a concurrence that the

phrase “motivating factor”—which appears no fewer than 40 times in the pattern instructions quoted below—is more confusing than clear when used in a jury charge:

My reason for writing separately is to urge district judges to
do a better job of presenting the issue of “motivating factor” to a jury than was done in the original instruction, even though that instruction did not misstate the law. It may be unrealistic to think that jury instructions are very important to the jury ; their principal importance may lie in placing bounds on what the lawyers can say to the jury in their closing arguments. Still, some pains should be taken to make jury instructions clear. As we said in Gehring v. Case Corp., 43 F.3d 340, 344 (7th Cir.1994), in disapproving the use of the term “determining factor” in jury instructions in cases under the age discrimination law, “What the jury needs to know can, and should, be expressed in simple language.” Jury instructions should turn the language of statutes and judicial opinions, which is generally not drafted with a lay readership in mind, into language that poses concrete decisions for lay jurors to make. An instruction that uses the term “motivating factor” does not do this.

 

The original instruction did try to explain the term: “you may
find that plaintiffs’ race was a ‘motivating factor’ if the racial composition of the plaintiff group played [a] part or a role in the defendant’s salary determinations to set plaintiffs’ salaries. However, the racial composition of the plaintiff group need not have been the only reason for defendant’s salary determinations.” But to say that something plays “a part or a role” in the decision about which the plaintiff is complaining is not illuminating.

 

* * *

 

Of course, jurors should not be burdened with terms like
“sufficient condition” or “necessary condition” (or for that matter “catalyst”) or introduced to the complex meanings of “cause.” They should be told simply that the plaintiff must prove that he would have been fired, because of his race, even if he had been a satisfactory worker (not necessarily a superlative worker, but a worker who would have been retained had he been of a different race), but that if the defendant presents evidence to show that the plaintiff would have been fired anyway, regardless of his race, because he was an unsatisfactory employee, it is the defendant’s burden to prove this by a preponderance of the evidence. This is more precise and informative than talk about “motivating factor” and whether something “played a part or a role” in the defendant’s action.

Boyd v. Illinois State Police , 384 F.3d 888, 898–99 and 900–01, 94 FEP Cases 839 (7th Cir. 2004) (Posner, J., concurring in the opinion and judgment).

Part II of this paper sets forth the general suggestions of the

Manual on Complex Litigation, and Part III sets forth selected portions of the pattern or model jury instructions of the Circuits that have adopted them, and comments.

To keep this paper within reasonable bounds—to the extent

that it is in fact within reasonable bounds—many relevant topics have not been included: retaliation, constructive discharge (except in the sexual harassment context), adverse employment actions, and more. One panel can address only so much. These may be useful topics for future panels.

II. Guidance from the Manual on Complex Litigation, 4th Edition

The following is taken from the Administrative Office of

the U.S. Courts, Manual on Complex Litigation, 4th Ed. (2004), at 154–63:

12.43 Jury Instructions 362
.431 General Principles
.432 Preliminary Instructions
.433 Interim and Limiting Instructions
.434 Final Instructions
.435 Jurors’ Use of Exhibits During Deliberations
.436 Supplemental Instructions and Readbacks
__________
154
154
156
156
158
158

 

362. See generally Benchbook, supra note 45, §§ 2.07–
2.08, 6.05–6.06 (jury instructions in criminal and civil cases, respectively).

 

A. 12.431 General Principles

 

A complex and protracted trial makes understandable jury
instructions particularly important. Instructions should use language that laypersons can understand—instructions should be concise, concrete, and simple, be in the active voice, avoid negatives and double-negatives, and be organized in logical sequence. Counsel should submit proposed instructions at the final pretrial conference to focus the judge’s and lawyers’ attention on the issues to be tried (see section 11.65).

 

Substantive instructions should be tailored to the particula
r case, and the judge should avoid a generalized pattern of instructions. The judge should explain propositions of law with reference to the facts and parties in the case; illustrations familiar to jurors may also help. Instructions using the language of appellate opinions are rarely meaningful to jurors. Most judges reword—or at least edit—counsel’s proposed instructions, which are often argumentative and one-sided. Combining the proposals submitted by counsel for each side rarely produces sound and intelligible instructions. Instructions should be read to the jury in a manner that enhances comprehension and retention; rarely should the reading take more than thirty minutes. Some judges use the court’s evidence presentation system to put the jury instructions on a screen or monitors in the courtroom so that jurors can read along as the instructions are given orally. 363 Jurors usually like to have one or more copies of the instructions in the jury room (see section 12.434). In complex cases with long verdict forms, it is helpful for each juror to have an individual copy of the verdict form.
__________
363. See Effective Use of Courtroom Technology , supra
note 85, at 149–53, for related discussion and suggestions.

 

B. 12.432 Preliminary Instructions

 

Jurors can deal more effectively with the evidence in a
lengthy trial if they are provided with a factual and legal framework to give structure to what they see and hear. Moreover, jurors should understand the trial process in which [155] they are about to participate and what they can expect. Preliminary instructions provide context and basic guidance for the jurors’ conduct. These instructions typically contain or delineate the following:
    • Preliminary statement of legal principles and factual issues. The instructions should summarize the key factual issues, including the undisputed facts and the parties’ major contentions (which may be drafted jointly by the parties), and explain briefly the basic legal issues and principles, such as the elements of claims and defenses to be proved. The court should emphasize that these instructions are preliminary—they don’t cover all the issues or principles—and that instructions given at the conclusion of the case will govern deliberations. Since one purpose of these instructions is to prepare jurors for opening statements, they are usually given first, permitting counsel to refer to them in opening statements. The judge may, however, defer instructions until after opening statements or give supplemental preliminary instructions at that time.

 

  • The conduct of the trial. The judge should inform jurors of the anticipated course of the trial from opening statements to verdict, the methods for presenting evidence, and the procedure for raising and resolving objections. It is also useful to introduce court personnel—the clerks, bailiffs, and reporters—and to provide a short orientation to the equipment in the courtroom. 364
    __________

 

364. See id. at 146–49 (suggesting language for
explaining courtroom technology to jurors).
  • Schedule. Jurors should be informed of the hourly and daily trial schedule and any holidays or other recesses.
  • Precautions to prevent mistrial. 365 The judge should direct jurors not to discuss the case or communicate with trial participants. It is also important that they be warned against exposure to publicity and attempts at independent fact-finding, such as viewing the scene of some occurrence or undertaking experiments or research.
    __________
365. See also infra section 12.44 (avoiding mistrial).
  • Pretrial procedures. The instructions should briefly describe the various discovery devices used during the pretrial stage of the litigation, such as depositions, document production, and interrogatories. This information will be helpful when the evidence is introduced, and it explains how the parties learned the facts of the case.
  • The functions and duties of the jury. The judge should describe the jury’s role as fact-finder; the burden of proof; assessing the credibility of witnesses; the nature of evidence, including circumstantial evidence [156] and the purpose of rules of evidence; and the jurors’ need to rely on their recollection of testimony (including any special instructions about the use of juror notebooks, note taking, or questions). Most of these instructions should be repeated in the final jury charge, supplemented by any special explanations (such as use of convictions to impeach credibility) warranted by developments at trial, or the use of special verdicts or interrogatories. 366
    __________
366. See infra sections 12.436, 12.45 (supplemental
instructions and verdicts, respectively).

 

C. 12.433 Interim and Limiting Instructions

 

Developments in the course of trial may require additional
instructions. Under Federal Rule of Evidence 105, when evidence is admitted that is admissible as to some but not all parties or for a limited purpose only, the court must, upon request, instruct the jury accordingly. At counsel’s request, the judge may repeat such limiting instructions at the close of trial. Counsel should be advised that when they contemplate offering such evidence, they should raise the issue promptly (if possible, before trial) and submit proposed instructions. The judge may also give instructions at any point in the trial where they might be helpful to the jury. An explanation of applicable legal principles may be more helpful when the issue arises than if deferred until the close of trial, but counsel should be permitted to comment or object before an instruction is given. As with preliminary instructions, the judge should caution the jury that these are only interim explanations, and that the final, complete instructions on which they will base their verdict will come at the close of trial. If the parties are presenting their evidence according to a prescribed sequence of issues (see section 12.34), the instructions should be structured accordingly.

 

D. 12.434 Final Instructions

 

Although proposed instructions should generally be
submitted to the court in connection with the final pretrial conference, developments during the trial may require their revision or supplementation. Counsel are entitled to file written requests for instructions “at the close of the evidence or at such earlier time as the court reasonably directs,” and are entitled to notice of the judge’s proposed action before closing arguments. 367 Most judges, rather than responding to particular requests, provide counsel with the entire charge they propose to give and then hold a charge conference to consider counsel’s objections and requests; generally there will be little controversy if the judge has prepared [157] instructions. 368 Having proposed instructions submitted electronically can expedite the editing process.
__________

 

367. Fed. R. Civ. P. 51; Fed. R. Crim. P. 30.
368. For a general discussion of procedures and options,
see Benchbook , supra note 45, §§ 2.08, 6.06.

 

Final instructions may be given before or after closing
arguments, or both. 369 Though traditionally instructions have been given after counsel’s closings, there are advantages to giving the bulk of the instructions before argument. 370 Instructions on the law may make closing arguments easier to understand, and counsel can refer to instructions already given in arguing their application to the facts. At a minimum, counsel should know before closing arguments what final instructions will be given. This may help them structure their arguments. The judge should reserve the final closing instructions, however, until after arguments, reminding the jury of the instructions previously given and instructing them about the procedures to follow in deliberations. 371
__________

 

369. Fed. R. Civ. P. 51; Fed. R. Crim. P. 30.
370. See Fed. R. Civ. P. 51 committee note.
371. See Stonehocker v. Gen. Motors Corp., 587 F.2d
151, 157 (4th Cir. 1978); Babson v. United States, 320 F.2d 662, 666 (9th Cir. 1964).

 

Most judges give jurors copies of the instructions to
use during deliberations. Because jurors are unlikely to remember lengthy and complex legal terms, define these terms in advance so that they can listen to the charge for a general understanding rather than try to memorize it. Some judges keep the written charge from jurors while they deliver the instructions, to focus attention on the delivery. Others permit the jurors to follow the text in hard copy or on a monitor, or at least give them a brief topical outline to follow as the instructions are given. Jurors should have any special verdict forms or interrogatories for use during deliberations. The oral charge, which the court reporter transcribes, should be complete within itself (i.e., not merely refer to writings that the jury may be given). The judge should instruct jurors that, in the event of any variations between the oral and written charges, the oral charge controls and governs their deliberations. Some judges have experimented with providing jurors with a tape recording of the charge for use during deliberations. Access to specific passages may be facilitated by recording designated portions on separate tapes, or maintaining a record of the counter number where different portions begin. 372 The charge should focus on helping the jurors understand the law and their responsibilities.
__________

 

372. See Leonard B. Sand & Steven A. Reiss, A Report
on Seven Experiments Conducted by District Judges in the Second Circuit , 60 N.Y.U. L. Rev. 423, 456–69 (1985).

 

[158] In complex litigation, some judges comment on evidence in order to explain subject matter foreign to jurors and to keep them from being confused or misled by adversarial presentations. Such comments should be impartial and assist comprehension only. Before commenting on the evidence, however, consider submitting the proposed language to counsel for comment and objections. The judge’s comments may be included with the written instructions given to the jury, but it may be preferable not to do so to avoid giving the comments undue weight. A judge’s expression of a personal opinion on disputed facts can be problematic. 373
__________

 

373. See Quercia v. United States, 289 U.S. 466, 469
(1933). Quercia , in which Chief Justice Hughes discusses judicial comments on evidence in detail, is still cited as the leading case on the issue. See, e.g., United States v. Beard, 960 F.2d 965, 970 (11th Cir. 1992).

 

After the judge has given all instructions, and before the jury
retires, counsel are entitled to record any objections to the charge outside the presence of the jury. 374 It is helpful to remind counsel that objections and the grounds must be stated distinctly or be deemed waived. 375 The judge can then give corrective or supplemental instructions (see section 12.436) before deliberations begin.
__________

 

374. Fed. R. Civ. P. 51; Fed. R. Crim. P. 30.
375. Fed. R. Civ. P. 51; Fed. R. Crim. P. 30.

 

E. 12.435 Jurors’ Use of Exhibits During Deliberation

 

Some judges send all exhibits received in evidence
(except items such as currency, narcotics, weapons, and explosive devices) directly to the jury room for reference during deliberations. Other judges await requests from the jury, or withhold some items—such as those received for impeachment or another limited purpose—until and unless requested by the jury, when they repeat the limiting instructions. If the exhibits are voluminous, jurors should be given an index or other aids to assist their examination (see section 12.31).

 

F. 12.436 Supplemental Instructions and Readbacks

 

Requests by the jury for supplemental instructions during
deliberations are handled in much the same manner as final instructions, i.e., the appropriate response is determined after consulting with counsel and allowing them to object to the proposed response on the record. The instructions should be given orally in open court, with a reminder to the jury to consider the instructions as a part of those previously given, which remain binding.

 

The final instructions should advise the jurors that in
deliberating on their verdict, they will not have a transcript available but will have to rely on the ex-[159] hibits and their recollection of the testimony. Nevertheless, after long and complex trials, most juries will request readbacks of testimony. The court should instruct the jury to make requests as specific and narrow as possible to avoid excessively long readbacks, then should confer with the attorneys to seek agreement on the portions of the testimony to be read. Counsel should state any objections on the record.

 

Readbacks should not unduly emphasize any part of the evidence. 376 Some judges decline readback requests altogether, to save time and to avoid potentially unfair distortions of the record. This approach can sometimes make the jury’s task more difficult. Some readbacks can be avoided, however, by an agreed-on statement of the parties’ positions on the matter at issue. Readbacks should never be authorized absent counsel’s consent or, at least, absent an opportunity to be heard.
__________
376. See United States v. Hernandez, 27 F.3d 1403, 1408–10 (9th Cir. 1994).

 

G. 12.44 Avoiding Mistrial

 

Complex trials increase the potential and
consequences of mistrials. Accordingly, the judge might consider the following precautions to minimize the most obvious risk, the jury’s failure to reach a verdict:
  • Evidence and instructions. Trials and charges should present the facts and the law so as to maximize jury comprehension.
  • Stipulations on verdict. In advance of trial, the judge should encourage the parties to stipulate under Federal Rule of Civil Procedure 48 377 to accept a nonunanimous verdict, or under Rule 39(a)(1) to accept a nonjury decision on the same evidence if a jury verdict cannot be obtained (see section 11.62). Such stipulations may be made during trial or deliberations—indeed, the parties may not seriously consider them until actually faced with the possibility of mistrial caused by the need to remove a juror—but are generally easier to obtain in advance.
    __________
377. See section 12.411.
  • Partial verdicts. Permit juries to return a partial verdict on issues on which they can agree.
  • Cautionary instructions. As discussed in section 12.432, the jurors, at the outset and periodically during the trial, should be given appropriate instructions regarding improper conduct. The final instructions may also include a brief explanation of the consequences of a mistrial.
  • Special verdicts and interrogatories. These are discussed in section 12.451.
  • [160] • The jury room. The jury deliberation room should be “sanitized” before the jury retires, and all counsel should review all material before it is sent into the room, to ensure that it includes nothing extraneous.
  • Sequestration. The judge should consider sequestration only in extraordinary cases where public interest and media coverage are so intense as to jeopardize the fairness of the trial.
  • Seating a sufficient number of jurors. If a juror is excused or disqualified during deliberations, it need have no effect as long as six jurors remain. If the loss of one or more jurors would reduce the jury to fewer than six members, however, the court cannot accept the resulting verdict (absent the stipulation described above). Seating a sufficient number of jurors helps to avoid this situation (see section 12.411).
H. 12.45 Verdicts

 

.451 Special Verdicts and General Verdicts with Interrogatories
.452 Judgment as a Matter of Law
.453 Return of Verdict
160
162
163

 

I. 12.451 Special Verdicts and General Verdicts with Interrogatories

 

Special verdicts and interrogatories are common in
complex trials. As discussed in section 11.633, they simplify instructions, help jurors organize their deliberations, facilitate partial verdicts, isolate issues for possible appellate review, and reduce the costs and burdens of a retrial. A general verdict form should at least require separate verdicts on each claim and on damages, but be drafted so as to prevent duplicate damage awards. Counsel and the court should consider the form of verdict during pretrial.

 

Special verdicts may require the jury to return findings on
each issue of fact, leaving the court to apply the law to the jury’s findings. Some courts have held that the court may also amend special verdict responses to conform to the jury’s obvious intention or to correct a manifest error. 378 The preparation of special verdict forms can be complicated. Federal Rule of Civil Procedure 49(a) suggests the court submit “written questions susceptible of categorical or other brief answer,” or “written forms of the several special findings which might properly be made under the pleadings and evidence.” Alternatively, the rule [161] permits any “method of submitting the issues and requiring the written findings thereon as [the judge] deems most appropriate.”
__________

 

378. See Aquachem Co. v. Olin Corp., 699 F.2d 516, 520
(11th Cir. 1983); Shaffer v. Great Am. Indem. Co., 147 F.2d 981 (5th Cir. 1945), but cf . Austin-Westshore Constr. Co. v. Federated Dep’t Stores, Inc., 934 F.2d 1217, 1224 (11th Cir. 1991) ( Aquachem does not apply to general verdicts with interrogatories).

 

The verdict form should be concise, clear, and
comprehensive. If any issue of fact raised by the pleadings is omitted, the parties must demand its submission before the jury retires or they will waive their right to a jury trial on that issue. The court may make its own findings on issues omitted without such demand. 379
__________
379. Fed. R. Civ. P. 49(a).

 

Inconsistent verdicts are a concern even with standard
verdict forms, but careful structuring and instructions should minimize the risk of inconsistency. Rule 49 requires the court to instruct the jury on how to complete the verdict form properly, including both the procedure for rendering special verdicts and the specific substantive issues to be decided. Consider having the jury return partial verdicts seriatim, instructing on each issue individually before the jury deliberates on it.

 

Alternatively, the court could submit a general verdict form
with interrogatories. The jury both determines the facts and applies the law; it also makes findings on “issues of fact the decision of which is necessary to a verdict.” 380
__________
380. Fed. R. Civ. P. 49(b).

 

Some consider this procedure an attractive compromise
between a simple general verdict and special verdicts. It maintains the traditional role of the jury while diminishing the need to relitigate factual issues if an error of law taints the general verdict. On the other hand, interrogatories increase the length and complexity of deliberations and are more likely to produce inconsistencies. When the interrogatory answers are consistent with each other but inconsistent with the general verdict, the court may simply enter judgment according to the answers, or may return the jury for further deliberation or order a new trial. 381 The court may not accept the verdict if the answers are inconsistent with each other and at least one is also inconsistent with the general verdict; it must first try to reconcile the answers, ordering further deliberations or a new trial if it cannot. 382 After the return of special verdicts or a general verdict with interrogatories, it is important to allow counsel to be heard before discharging the jury. That will allow further deliberations to cure inconsistencies following supplemental instructions, and, perhaps, amendment of the verdict form. 383
__________

 

381. Id .
382. See id .; Atl. & Gulf Stevedores, Inc. v. Ellerman Lines,
Ltd., 369 U.S. 355, 364 (1962).

 

383. Case law on the court’s authority to amend or
supplement verdict forms after the jury has returned a verdict is scarce; for a case holding it permissible to amend interrogatories, see United States v. 0.78 Acres of Land , 81 F.R.D. 618, 622 (E.D. Pa.) (mem.), aff’d, 609 F.2d 504 (3d Cir. 1979).

 

[162] * * * [163]

 

J. 12.453 Return of Verdict 386__________

 

386. For general procedures for receipt of civil verdicts, see
Benchbook , supra note 45, § 6.07.

 

When the jury has returned a special verdict or a general
verdict with interrogatories, the judge and counsel should promptly review it for inconsistencies so as to permit appropriate steps before the jury is discharged. After consultation with counsel, the judge should promptly approve a form of judgment for entry by the clerk. 387 If the judgment does not resolve all aspects of the litigation, entering final judgments as to some claims or parties allows an appeal to be taken. 388
__________

 

387. See Fed. R. Civ. P. 58.
388. See Fed. R. Civ. P. 54(b); see also 28 U.S.C. § 1291
(West 2002); infra section 15.1.

 

Where issues have been bifurcated or submitted to the jury
for seriatim verdicts, the jury may need to resume hearing evidence and receive further instructions or begin deliberations on other issues. 389 If a recess is called, the judge should instruct the jurors that they remain under the restrictions originally imposed; if the recess extends more than a few days, a supplementary examination of jurors may be necessary on their return to determine whether grounds for disqualification have arisen in the interim
__________

 

389. See supra sections 11.632 (separate trials), 12.34
(sequencing of evidence and arguments).

 

If the jury is deadlocked, the judge will need to consider
appropriate inquiries and instructions. Although the large investment in a long trial makes a mistrial costly, there should not be undue pressure on jurors to reach agreement. The incorrect use of an Allen charge may trigger a reversal. 390
__________

 

390. Darks v. Mullin, No. 01-6308, 2003 U.S. App. LEXIS
6977, at *288 (10th Cir. Apr. 11, 2003) (prohibiting use of Allen charge if found to impermissibly coerce the jury); United States v. Brennan, No. 01-3148, 2003 U.S. App. LEXIS 6546, at *37 (3d Cir. Apr. 7, 2003) (noting that the circuit has “developed a prophylactic rule prohibiting the use of such an Allen charge because of its power to coerce,” but allowing a modified Allen charge with noncoercive language); but cf. Mason v. Mitchell, 320 F.3d 604, 642 (6th Cir. 2003) (holding that Allen charge was not so coercive as to deny due process rights); United States v. Walrath, No. 02-2824, 2003 U.S. App. LEXIS 6359, at *7–*10 (8th Cir. Apr. 3, 2003) (reviewing challenged jury instruction for abuse of discretion); United States v. Crispo, 306 F.3d 71, 76–78 (2d Cir. 2002) (reviewing Allen charge under an abuse of discretion standard); United States v. Weymouth, 45 Fed. Appx. 311, 312 (4th Cir. 2002) (per curiam) (same).

III. Guidance from Pattern Jury Instructions on Certain Critical Issues

A. Burden of ProofInstructions on the burden of proof are clearly important, and the

Circuits vary in their approach to it.

1. Questions to Be Considered

 

a. Why Use the Term “Preponderance of the Evidence”?

 

The Manual states in § 12.431: “Instructions should use

language that laypersons can understand—instructions should be concise, concrete, and simple . . . .”

The term “preponderance of the evidence” is hard to reconcile

with that test. The term is not used outside of law—can one imagine a sports broadcast in which the announcer says that the Patriots had a “preponderance of the points”?—and it makes little sense to define a professional jargon phrase in plain English and then use the jargon phrase throughout the instructions instead of just using plain English throughout.

b. What About “Greater Weight of the Evidence”?

 

This term also seems to me capable of causing confusion.

Some Circuit pattern instructions expressly caution jurors against considering the mere number of witnesses as creating greater weight, but some do not. None caution jurors against assigning greater weight to particular witnesses simply because they are placed more highly in the defendant organization, or have an advanced degree, or specialize in personnel matters.

c. Is there a “plain English” Substitute?

 

How about something along the lines of this? “You should

decide what evidence you believe and find reliable, and whether there are differences in the believability or reliability of some evidence compared to other evidence. Considering only the evidence you find believable and reliable and keeping any such differences in mind, you must decide if it is more likely than not that XYZ Company discriminated against Susan Jones because of her sex.”

d. Is it Useful to Distinguish the Criminal Standard?

 

The Eighth Circuit model instructions are the only set to

mention the higher standard in criminal cases, and its inapplicability to civil cases. The phrase “proof beyond a reasonable doubt” is so much a part of the lay understanding of the law that jurors may think of it by default, particularly if the instructions use professional jargon. This strikes me as useful enough to justify its inclusion as a matter of course.

e. How Useful Are Instructions that Jurors May Consider
Evidence Favorable to One Side Even if the Other Put it In?

 

The Fifth, Ninth, and Eleventh Circuits make a point of mentioning

that evidence may be considered for one side even if the other side called the witness or introduced the exhibit. The Seventh and Eighth Circuits do not make this point.

Is there a need for such an instruction?

 

2. Fifth Circuit Model Instructions 2.14, 2.20, and 3.1

 

a. 2.14 Clear and Convincing Evidence

 

Clear and convincing evidence is evidence that produces in

your mind a firm belief or conviction as to the matter at issue. This involves a greater degree of persuasion than is necessary to meet the preponderance of the evidence standard; however, proof to an absolute certainty is not required.

b. 2.20 Burden of Proof When Only Plaintiff Has Burden

 

In this case, the plaintiff must prove every essential part of
his claim by a preponderance of the evidence.

 

A preponderance of the evidence simply means evidence
that persuades you that the plaintiff’s claim is more likely true than not true.

 

In deciding whether any fact has been proven by a
preponderance of the evidence, you may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them.

 

If the proof fails to establish any essential part of the
plaintiff’s claim by a preponderance of the evidence, you should find for the defendant as to that claim.

 

c. 3.1 General Instructions for Charge

 

You must answer all questions from a preponderance of
the evidence. By this is meant the greater weight and degree of credible evidence before you. In other words, a preponderance of the evidence just means the amount of evidence that persuades you that a claim is more likely so than not so. In determining whether any fact has been proved by a preponderance of the evidence in the case, you may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them.

 

3. Seventh Circuit Draft Model Instruction 1.27

 

When I say a particular party must prove something by “a
preponderance of the evidence,” or when I use the expression “if you find,” or “if you decide,” this is what I mean: When you have considered all the evidence in the case, you must be persuaded that it is more probably true than not true.

 

4. Eighth Circuit Model Instruction 3.04

 

In these instructions you are told that your verdict depends
on whether you find certain facts have been proved. The burden of proving a fact is upon the party whose claim [or defense] 1 depends upon that fact. The party who has the burden of proving a fact must prove it by the [(greater weight) or (preponderance)] 2 of the evidence. To prove something by the [(greater weight) or (preponderance)] of the evidence is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable. [If, on any issue in the case, the evidence is equally balanced, you cannot find that issue has been proved.]

 

[The [(greater weight) or (preponderance)] of the evidence
is not necessarily determined by the greater number of witnesses or exhibits a party has presented.]

 

[You may have heard of the term “proof beyond a
reasonable doubt.” That is a stricter standard which applies in criminal cases. It does not apply in civil cases such as this. You should, therefore, put it out of your minds.]

 

Notes on Use

 

1. Include when an affirmative defense will be submitted to the jury.

 

2. Select the bracketed language which corresponds to the
burden-of-proof instruction given.

 

5. Ninth Circuit Model Instructions 1.13 and 1.14

 

a. 1.13 Burden of Proof—Preponderance of the Evidence

 

When a party has the burden of proof on any claim [or
affirmative defense] by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim [or affirmative defense] is more probably true than not true.

 

You should base your decision on all of the evidence,
regardless of which party presented it.

 

b. 1.14 Burden of Proof—Clear and Convincing Evidence

 

When a party has the burden of proving any claim or
defense by clear and convincing evidence, it means you must be persuaded by the evidence that the claim or defense is highly probable. Such evidence requires a higher standard of proof than proof by a preponderance of the evidence.

 

You should base your decision on all of the evidence,
regardless of which party presented it.

 

6. Eleventh Circuit Model Instructions 6.1 and 6.2

 

a. 6.1 When Only Plaintiff Has Burden Of Proof

 

In this case it is the responsibility of the Plaintiff to prove
every essential part of the Plaintiff’s claim by a “preponderance of the evidence.” This is sometimes called the “burden of proof” or the “burden of persuasion.”

 

A “preponderance of the evidence” simply means an
amount of evidence that is enough to persuade you that the Plaintiff’s claim is more likely true than not true.

 

In deciding whether any fact has been proved by a
preponderance of the evidence you may consider the testimony of all of the witnesses, regardless of who may have called them, and all of the exhibits received in evidence, regardless of who may have produced them.

 

If the proof fails to establish any essential part of the
Plaintiff’s claim by a preponderance of the evidence, you should find for the Defendant as to that claim.

 

b. 6.2 Multiple Claims of Parties with Burdens

 

In this case each party asserting a claim or a defense has
the responsibility to prove every essential part of the claim or defense by a “preponderance of the evidence.” This is sometimes called the “burden of proof” or the “burden of persuasion.”

 

A “preponderance of the evidence” simply means an
amount of evidence that is enough to persuade you that a claim or contention is more likely true than not true.

 

When more than one claim is involved, and when more than
one defense is asserted, you should consider each claim and each defense separately; but in deciding whether any fact has been proved by a preponderance of the evidence, you may consider the testimony of all of the witnesses, regardless of who may have called them, and all of the exhibits received in evidence, regardless of who may have produced them.

 

If the proof fails to establish any essential part of a claim or
contention by a preponderance of the evidence you should find against the party making that claim or contention.

 

B. Prior Inconsistent Statements or Actions

 

1. Questions to Be Considered

 

a. Context

 

Many employment cases turn on the question whether the

defendant sincerely believed that its proffered nondiscriminatory reason for the challenged action was true, in which event a plaintiff without other evidence of discrimination generally loses. Many other cases turn on the credibility of the plaintiff, an alleged harasser, or an official of the defendant to whom a complaint was made. Litigators on both sides rely heavily on consistency to show credibility, and inconsistency to show deceit.

b. Is Such an Instruction Useful?

 

The Fifth, Seventh, Eighth, and Eleventh Circuits include such

instructions in their model sets, but the Ninth Circuit does not.

Based on my personal experience in jury rooms, I think such an

instruction helps the realistic persuade the unrealistic, helps facts get the upper hand over emotions, and therefore helps bring about a just result.

c. Is it Adequate Simply to Relegate This to Argument?

 

Jurors are commonly instructed that the statements of counsel

in argument are not evidence and that only the judge instructs them on law. Some jurors will simply not believe the argument of plaintiffs’ counsel informing them that they have the right to draw an inference of discrimination or of retaliation, but no obligation to do so. Unlike specific comments on the evidence, this touches on how they carry out their core functions. I believe it needs to be in the instructions.

d. Should Such an Instruction Include
Inconsistent Conduct?

 

The Fifth, Seventh, and Eleventh Circuits include mention of

inconsistent acts or omissions in their model sets, but the Eighth and Ninth do not.

Inconsistent conduct can be an indicator of deception even

stronger than inconsistent statements, and should be included in the instructions.

e. Should Inconsistent-Conduct Instructions
Discuss Degrees of Inconsistency?

 

None of the model instructions mentioning inconsistent

conduct discuss the degree to which the witness’s act or omission is inconsistent with the witness’s testimony, although they are careful to discuss the relative importance of different inconsistencies with prior statements.

There does not seem to be any good reason to differentiate

between conduct and statements in weighing the sharpness of inconsistencies with testimony.

2. Fifth Circuit Model Instructions 2.16 and 3.1

 

a. 2.16 Impeachment by Witnesses’
Inconsistent Statements

 

In determining the weight to give to the testimony of a
witness, you should ask yourself whether there was evidence tending to prove that the witness testified falsely about some important fact, or, whether there was evidence that at some other time the witness said [or did] something, [or failed to say or do something] that was different from the testimony he gave at the trial.

 

b. 3.1 General Instructions for Charge

 

In determining the weight to give to the testimony of a
witness, you should ask yourself whether there was evidence tending to prove that the witness testified falsely concerning some important fact, or whether there was evidence that at some other time the witness said or did something, or failed to say or do something, that was different from the testimony the witness gave before you during the trial.

 

You should keep in mind, of course, that a simple mistake
by a witness does not necessarily mean that the witness was not telling the truth as he or she remembers it, because people may forget some things or remember other things inaccurately. So, if a witness has made a misstatement, you need to consider whether that misstatement was an intentional falsehood or simply an innocent lapse of memory; and the significance of that may depend on whether it has to do with an important fact or with only an unimportant detail.

 

3. Seventh Circuit Draft Model Instruction 1.14

 

You may consider statements given by [Party] [Witness
under oath] before trial as evidence of the truth of what he said in the earlier statements, as well as in deciding what weight to give his testimony.

 

With respect to other witnesses, the law is different. If you
decide that, before the trial, one of these witnesses made a statement [not under oath] [or acted in a manner] that is inconsistent with his testimony here in court, you may consider the earlier statement [or conduct] only in deciding whether his testimony here in court was true and what weight to give to his testimony here in court.

 

[In considering a prior inconsistent statement[s] [or
conduct], you should consider whether it was simply an innocent error or an intentional falsehood and whether it concerns an important fact or an unimportant detail.]

 

4. Eighth Circuit Model Instruction 3.03 on Credibility of Witnesses

 

In deciding what the facts are, you may have to decide what
testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it.

 

In deciding what testimony to believe, you may consider a
witness’ intelligence, the opportunity a witness had to see or hear the things testified about, a witness’ memory, any motives a witness may have for testifying a certain way, the manner of a witness while testifying, whether a witness said something different at an earlier time, 1 the general reasonableness of the testimony, and the extent to which the testimony is consistent with any evidence that you believe.

 

[In deciding whether or not to believe a witness, keep in
mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.]

 

Notes on Use1. With respect to the use of prior inconsistent
statements (second paragraph of this instruction), Fed. R. Evid. 105 gives a party the right to require a limiting instruction explaining that the use of this evidence is limited to credibility. Note, however, that such a limiting instruction should not be given if the prior inconsistent statement was given under oath in a prior trial, hearing or deposition, because such prior sworn testimony of a witness is not hearsay and may be used to prove the truth of the matters asserted. Fed. R. Evid. 801(d)(1)(A).

 

5. Eleventh Circuit Model Instruction 4.1You should also ask yourself whether there was evidence
tending to prove that the witness testified falsely concerning some important fact; or, whether there was evidence that at some other time the witness said or did something, or failed to say or do something, which was different from the testimony the witness gave before you during the trial.

 

You should keep in mind, of course, that a simple mistake
by a witness does not necessarily mean that the witness was not telling the truth as he or she remembers it, because people naturally tend to forget some things or remember other things inaccurately. So, if a witness has made a misstatement, you need to consider whether that misstatement was simply an innocent lapse of memory or an intentional falsehood; and the significance of that may depend on whether it has to do with an important fact or with only an unimportant detail.

 

C. Permissive-Inference Pretext Instructions

 

1. Questions to Be Considered

 

There is a substantial conflict among the Circuits on whether

juries should be informed of their power to draw the inference of discrimination or retaliation when plaintiff shows that the defendant’s proffered nondiscriminatory reason for the challenged action is false. The Eighth Circuit is the only Circuit to include the topic in its pattern jury instructions, but some others require such an instruction where plaintiff requests it.

Because some jurors may wrongly believe that there must be

direct or circumstantial evidence pointing to the impermissible motive, in a close case it is difficult to see how a just result can be achieved without their being informed of their power. Relegating the information to the argument of counsel is not an adequate substitute because the court’s failure to mention the subject may lead the jury to reject the concept of such a power as the mere puffery of an advocate.

None of the decisions on this point identify any harm that would

arise from requiring such an instruction.

2. First Circuit Case Law

 

Fite v. Digital Equipment Corp., 232 F.3d 3, 84 FEP Cases

524 (1st Cir. 2000), affirmed the judgment on a jury verdict to the ADA and ADEA defendant on the cocaine-addicted plaintiff’s difficult claim that discrimination, not declining job performance, was the real reason for his discharge. On appeal, plaintiff argued that the jury should have been instructed that it was permitted to infer discrimination from a finding of pretext. The court stated: “While permitted, we doubt that such an explanation is compulsory, even if properly requested.” Id. at 7. Plaintiff did not anticipate Reeves, and did not timely request a permissive-pretext instruction. The court held that the failure to give such an instruction was not plain error.

3. Second Circuit Case Law

 

Cabrera v. Jakabovitz, 24 F.3d 372, 382, 64 FEP Cases

1239 (2d Cir.), cert. denied, 513 U.S. 876 (1994), a housing discrimination case following Title VII principles, held that a pretext instruction must be given where the defendant has satisfied its burden of production:

If the defendant has met its burden of producing evidence
that, if taken as true, would rebut the prima facie case, a threshold matter to be decided by the judge, the jury need not be told anything about a defendant’s burden of production. In that event, whether or not the facts of the plaintiff’s prima facie case are disputed, the jury needs to be told two things: (1) it is the plaintiff’s burden to persuade the jurors by a preponderance of the evidence that the apartment (or job) was denied because of race (or, in other cases, because of some other legally invalid reason) . . . and (2) the jury is entitled to infer, but need not infer, that this burden has been met if they find that the four facts previously set forth have been established and they disbelieve the defendant’s explanation . . . . There is no need to inform the jury that the defendant had a burden of production because it is no longer relevant. . . . There is also no need to refer to a burden shifting back to the plaintiff because, if the case requires submission to the jury, all the jury needs to be told about the plaintiff’s burden of proof is that the burden of persuasion as to discrimination is on the plaintiff; the presumption that triggered the defendant’s burden of production has “drop[ped] out of the picture.”

Id. (citations and footnotes omitted).

4. Third Circuit Case Law

 

Smith v. Borough of Wilkinsburg, 147 F.3d 272, 280, 77 FEP

Cases 119 (3d Cir. 1998), reversed the judgment on a jury verdict for the ADEA defendant because the lower court failed to instruct the jury on pretext:

Applying these principles, it is clear that the jury must be
given the legal context in which it is to find and apply the facts. It is difficult to understand what end is served by reversing the grant of summary judgment for the employer on the ground that the jury is entitled to infer discrimination from pretext, as we instructed in Fuentes v. Perskie, 32 F.3d 759, 764–65 (3d Cir.1994), if the jurors are never informed that they may do so. Accordingly, we join the Second Circuit in holding that the jurors must be instructed that they are entitled to infer, but need not, that the plaintiff’s ultimate burden of demonstrating intentional discrimination by a preponderance of the evidence can be met if they find that the facts needed to make up the prima facie case have been established and they disbelieve the employer’s explanation for its decision. [FN4]
__________
FN4. This does not mean that the instruction should include
the technical aspects of the McDonnell Douglas burden shifting, a charge reviewed as unduly confusing and irrelevant for a jury. . . .

 

5. Fifth Circuit Case Law

 

Ratliff v. City of Gainesville, 256 F.3d 355, 360–61, 86 FEP

Cases 472 (5th Cir. 2001), reversed the judgment on a jury verdict for the defendant, in part because the lower court failed to give a pretext instruction making clear that an inference of unlawful motivation may be drawn, but is not required, when plaintiff shows that defendant’s proffered nondiscriminatory reason is false. The court adopted the Cabrera and Smith decisions requiring that such an instruction be made. Id. at 361 n.7.

Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568, 9

Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568, 9 Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568, 9 Wage & Hour Cas.2d (BNA) 865 (5th Cir. 2004), an FLSA retaliation case, called for en banc reconsideration of Ratliff, based on its view that Ratliff extended Reeves by applying the permissive-pretext rule outside the context of summary judgment and judgment as a matter of law. It saw no basis for applying Reeves to jury instructions, but did not identify the harm it feared from letting juries know their actual function. The court held that it was bound by the decision, but held that the omission was harmless error. Judge Benavides concurred specially but disagreed that the Ratliff rule should be reconsidered en banc.

6. Seventh Circuit Case Law

 

Gehring v. Case Corp., 43 F.3d 340, 343, 66 FEP Cases 1373

(7th Cir. 1994), cert. denied, 515 U.S. 1159 (1995), affirmed the judgment on a jury verdict for the ADEA defendant. The court rejected plaintiff’s argument that the jury should have been instructed in each of the McDonnell Douglas elements, and continued:

Gehring also wanted the judge to instruct the jury about one permissible inference: that if it did not believe the employer’s explanation for its decisions, it may infer that the employer is trying to cover up age discrimination. This is a correct statement of the law . . . but a judge need not deliver instructions describing all valid legal principles. Especially not when the principle in question describes a permissible, but not an obligatory, inference. Many an inference is permissible. Rather than describing each, the judge may and usually should leave the subject to the argument of counsel. . . . Gehring’s lawyer asked the jury to draw this inference; neither judge nor defense counsel so much as hinted that any legal obstacle stood in the way. Instructions on the topic were unnecessary.

 

7. Eighth Circuit Model Instructions 5. 91 and 5.95

 

a. Model Instruction 5.91
5.91 DISPARATE TREATMENT CASES – PRETEXT/INDIRECT EVIDENCE INSTRUCTION – ESSENTIAL ELEMENTSYour verdict must be for plaintiff [and against defendant
__________] 1 [on plaintiff’s (age) 2 discrimination claim] 3 if all the following elements have been proved by the [(greater weight) or (preponderance)] 4 of the evidence:

 

First, defendant [discharged] 5 plaintiff; and
Second, plaintiff’s (age) was a 6 determining factor7 in
defendant’s decision.
If any of the above elements has not been proved by the
[(greater weight) or (preponderance)] of the evidence, your verdict must be for defendant.
“(Age) was a determining factor” only if defendant would not
have discharged plaintiff but for plaintiff’s (age); it does not require that (age) was the only reason for the decision made by defendant. 8 [You may find (age) was a determining factor if you find defendant’s stated reason(s) for its decision(s) [(is) (are)] not the true reason(s), but [(is) (are)] a “pretext” to hide [(age) (gender) (race)] discrimination]. 9

 

Committee CommentsIn Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133 (2000), the Supreme Court held that an age discrimination plaintiff may create a submissible issue by showing that the defendant’s stated reason for its decision was pretextual. This instruction may be used in “pretext” cases filed under ADEA, § 1981, and § 1983, if the trial court believes it is appropriate to follow the pretext/mixed motive distinction identified in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). See Introductory Note to Section 5. This basic instruction should not be given if the plaintiff is proceeding on a “mixed motive” theory. Mullins v. Uniroyal, Inc., 805 F.2d 307, 309 (8th Cir. 1986). If the trial court is inclined to adhere to the pretext/mixed motive distinction, but cannot determine how to categorize a particular case, see infra Model Instruction 5.92.

 

It is unnecessary and inadvisable to instruct the jury
regarding the three-step analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Ryther v. KARE 11, 108 F.3d 832 (8th Cir. 1997). See Grebin v. Sioux Falls Indep. School Dist. No. 49-5, 779 F.2d 18, 20 (8th Cir. 1985); see generally Bell v. Gas Serv. Co., 778 F.2d 512, 516 (8th Cir. 1985) (inquiry should focus on whether age was a determining factor in employer’s decision, not on any particular step in the McDonnell Douglas paradigm). Instead, the submission to the jury should focus on the ultimate issue of whether intentional discrimination was a determining factor in the defendant’s employment decision. Washburn v. Kansas City Life Ins. Co., 831 F.2d 1404, 1408 (8th Cir. 1987) (ultimate issue is whether intentional discrimination was a determining factor in the action taken by the employer); Bethea v. Levi Strauss & Co., 827 F.2d 355, 357 (8th Cir. 1987) (same); see also Grebin, 779 F.2d at 20 n.1 (approving definition of “determining factor”).

 

Plaintiffs can prove that unlawful bias was a “determining
factor” by showing “either direct evidence of discrimination or evidence that the reasons given for the adverse action are a pretext to cloak the discriminatory motive.” Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1063 (8th Cir. 1988) (emphasis added). “[A]n employer’s submission of a discredited explanation for firing a member of a protected class is itself evidence which may persuade the finder of fact that such unlawful discrimination actually occurred.” MacDissi v. Valmont Indus., Inc., 856 F.2d 1054, 1059 (8th Cir. 1988). See also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).

 

Notes on Use1. Use this phrase if there are multiple defendants.2. This instruction is designed for use in age discrimination
cases brought pursuant to the ADEA. It should be modified for race discrimination cases under 42 U.S.C. 1981 and constitutional discrimination cases under 42 U.S.C. 1983.

 

3. The bracketed language should be inserted when the
plaintiff submits more than one claim to the jury.

 

4. Select the bracketed language which corresponds to the
burden-of-proof instruction given.

 

5. This first element is designed for use in a discharge
case. In a “failure to hire,” “failure to promote,” or “demotion” case, the instruction must be modified. Where the plaintiff resigned but claims a “constructive discharge,” this instruction should be modified. See infra Model Instruction 5.93.

 

6. Historically, cases have approved use of “a” determining
factor in pretext cases. See Ryther v. KARE 11, 108 F.3d 832, 846-47 (8th Cir. en banc 1997). However, in Rockwood Bank v. Gaia, 170 F.3d 833 (8th Cir. 1999), a panel decision held that “the” determining factor should be used.

 

7. The phrase “age was a determining factor” must be
defined. The Committee sees no problem in allowing a plaintiff to submit the issue to the jury using “determining factor” rather than “motivating factor” if plaintiff wishes to do so, even in mixed-motive cases.

 

8. This definition of the phrase “(age) was a determining
factor” is based on Grebin v. Sioux Falls Indep. School Dist. No. 49-5, 779 F.2d 18, 20 n.1 (8th Cir. 1985).

 

9. The bracketed phrase may be added at the court’s option
in cases in which plaintiff relies on indirect evidence/pretext to prove discriminatory motive.

 

b. Model Instruction 5.95

 

5.95 PRETEXT INSTRUCTIONYou may find that plaintiff’s (age) 1 was a motivating factor
in defendant’s (decision) 2 if it has been proved by the [(greater weight) (preponderance)] 3 of the evidence that defendant’s stated reason(s) for its (decision) [(is) (are)] not the true reason(s), but [(is) (are)] a pretext to hide [(age) (gender) (race)] discrimination.

 

Committee CommentsPlaintiffs can establish unlawful bias through “either direct
evidence of discrimination or evidence that the reasons given for the adverse action are a pretext to cloak the discriminatory motive.” Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1063 (8th Cir. 1988) (emphasis added). “[A]n employer’s submission of a discredited explanation for firing a member of a protected class is itself evidence which may persuade the finder of fact that such unlawful discrimination actually occurred.” MacDissi v. Valmont Indus., Inc., 856 F.2d 1054, 1059 (8th Cir. 1988). This instruction, which is based on St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993), may be used in conjunction with the essential elements instruction when the plaintiff relies substantially or exclusively on “indirect evidence” of discrimination. In an attempt to clarify this standard, the Eighth Circuit, in Ryther v. KARE 11, 108 F.3d 832 (8th Cir. 1997), stated:

 

In sum, when the employer produces a nondiscriminatory
reason for its actions, the prima facie case no longer creates a legal presumption of unlawful discrimination. The elements of the prima facie case remain, however, and if they are accompanied by evidence of pretext and disbelief of the defendant’s proffered explanation, they may permit the jury to find for the plaintiff. This is not to say that, for the plaintiff to succeed, simply proving pretext is necessarily enough. We emphasize that evidence of pretext will not by itself be enough to make a submissible case if it is, standing alone, inconsistent with a reasonable inference of age discrimination.Id. at 837 (footnote omitted).

 

Notes on Use1. This term must be modified if the plaintiff alleges
discrimination on the basis of race, gender, or some other prohibited factor.

 

2. Consistent with the various essential elements
instructions in this section, this instruction makes references to the defendant’s “decision.” It may be modified if another term–such as “actions” or “conduct”–would be more appropriate.

 

3. Select the bracketed language which corresponds to the
burden-of-proof instruction given.

 

8. Eighth Circuit Proposed Model Instruction 5.01

 

Proposed model instruction 5.01 differs from current model
instruction 5.01 in that the proposed instruction adds a reference to pretext:

 

5.01 TITLE VII – DISPARATE TREATMENT – ESSENTIAL ELEMENTS
Your verdict must be for plaintiff [and against defendant
___________] 1 [on plaintiff’s (sex) 2 discrimination claim] 3 if all the following elements have been proved by the [(greater weight) (preponderance)] 4 of the evidence:

 

First, defendant [discharged] 5 plaintiff; andSecond, plaintiff’s (sex) [was a motivating factor] 6 [played a
part] 7 in defendant’s decision.

 

If either of the above elements has not been proved by the
[(greater weight) (preponderance)] of the evidence, your verdict must be for defendant and you need not proceed further in considering this claim. [You may find that plaintiff’s (sex) [was a motivating factor] [played a part] in defendant’s (decision) 8 if it has been proved by the [(greater weight) (preponderance)] of the evidence that defendant’s stated reason(s) for its (decision) [(is) (are)] a pretext to hide (sex) discrimination.] 9

 

Notes on Use1. Use this phrase if there are multiple defendants.2. This instruction is designed for use in a gender
discrimination case. It must be modified if the plaintiff is claiming discrimination on the basis of race, religion, or some other prohibited factor.

 

3. The bracketed language should be inserted when the
plaintiff submits more than one claim to the jury.

 

4. Select the bracketed language that corresponds to the
burden-of-proof instruction given.

 

5. This instruction is designed for use in a discharge case.
In a “failure to hire,” “failure to promote,” or “demotion” case, the instruction must be modified. Where the plaintiff resigned but claims a “constructive discharge,” this instruction should be modified. See infra Model Instruction 5.93.

 

6. The Committee believes that the phrase “motivating
factor” should be defined. See infra Model Instruction 5.96. It appears to be an open question after Costa whether a plaintiff may chose to submit under section 2000e2(a)(1) using the determining factor/McDonnell Douglas format. Those instructions may be found at Model Instructions 5.10 et seq.

 

7. See Model Instruction 5.96, which defines “motivating
factor” in terms of whether the characteristic “played a part or a role” in the defendant’s decision. The phrase “motivating factor” need not be defined if the definition itself is used in the element instruction.

 

8. Consistent with the various essential elements
instructions in this section, t This instruction makes references to the defendant’s “decision.” It may be modified if another term–such as “actions” or “conduct”–would be more appropriate.

 

9. This sentence may be added, if appropriate. See Model
Instruction 5.95 and Moore v. Robertson Fire Protection Dist., 249 F.3d 786, 790 n.9 (8th Cir. 2001), which states “[w]e do not express any view as to whether it ever would be reversible error for a trial court to fail to give a pretext instruction, though we tend to doubt it.”

 

Committee CommentsThis instruction is designed to submit the issue of liability
in “disparate treatment” Title VII cases that are subject to the amendments set forth in the Civil Rights Act of 1991. Prior to these amendments, Title VII cases were not jury-triable, Harmon v. May Broadcasting Co., 583 F.2d 410 (8th Cir. 1978), and the liability standards depended upon whether the case was classified as a “pretext” case or a “mixed motive” case. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Under the Civil Rights Act of 1991, these cases will be triable to a jury, see CRA of 91, 102 (codified at 42 U.S.C. 1981a(c) (1994)), and, more importantly, the plaintiff prevails on the issue of liability if he or she shows that discrimination was a “motivating factor” in the challenged employment decision. See CRA of 91, 107 (codified at 42 U.S.C. 2000e-2(m) (1994) (pretext cases)). Plaintiffs who prevail on the issue of liability will be eligible for a declaratory judgment and attorney fees; however, they cannot recover actual or punitive damages if the defendant shows that it would have made the same employment decision irrespective of any discriminatory motivation. See CRA of 91, 107 (codified at 42 U.S.C. 2000e-5(g)(2)(B) (1994)); see infra Model Instruction 5.01A (“same decision” instruction).

 

It is unnecessary and inadvisable to instruct the jury
regarding the three-step analysis of McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See Grebin v. Sioux Falls Indep. School Dist. No. 49-5, 779 F.2d 18, 20-21 (8th Cir. 1985) (ADEA case). See generally Gilkerson v. Toastmaster, Inc., 770 F.2d 133, 135 (8th Cir. 1985) (after all of the evidence has been presented, inquiry should focus on ultimate issue of intentional discrimination, not on any particular step in the McDonnell Douglas paradigm). Accordingly, this instruction is focused on the ultimate issue of whether the plaintiff’s protected characteristic was a “motivating factor” in the defendant’s employment decision.

 

9. Tenth Circuit Case Law

 

Townsend v. Lumbermens Mutual Casualty. Co., 294 F.3d

1232, 89 FEP Cases 306 (10th Cir. 2002), a three-opinion case, reversed the judgment on a jury verdict for the § 1981 and Title VII racial discrimination defendant. Senior Judge Holloway wrote at 1241:

This is a difficult matter for courts, and would certainly be difficult for a jury. We consider the danger too great that a jury might make the same assumption that the Fifth Circuit did in Reeves. Therefore, we hold that in cases such as this, a trial court must instruct jurors that if they disbelieve an employer’s proffered explanation they may—but need not—infer that the employer’s true motive was discriminatory. Moreover we are persuaded by the position of the EEOC that the issue is whether in the absence of any instructions about pretext, “the jury found for the defendant because it believed the plaintiff could not prevail without affirmative evidence that his race was a motivating factor in the challenged employment decisions.”

 

We do not hold that a pretext instruction is always required,
but rather that it is required where, as here, a rational finder of fact could reasonably find the defendant’s explanation false and could “infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.”

(Footnote and citations omitted.) Judge Henry concurred at 1244, stating: “Given the recent confusion regarding the nature of the proof necessary to prevail on a Title VII claim, I am persuaded that, absent the proposed instruction, jurors are left without adequate guidance as to the circumstances in which they may infer discriminatory intent. Thus, under similar facts and where requested, I believe the instruction must be given; I concur.” Senior Judge Brorby dissented. Id. at 1244–48.

10. Eleventh Circuit Case Law

 

Palmer v. Board of Regents, 208 F.3d 969, 974–75, 82 FEP

Cases 1024 (11th Cir. 2000), affirmed the judgment on a jury verdict for the Title VII religious discrimination defendant, but held that a pretext instruction could be useful but that it was not required. The court stated: “We would however suggest that it might be helpful for the Committee On Pattern Jury Instructions of the District Judges Association of the Eleventh Circuit to revisit the pattern jury instruction on this issue to consider whether any improvements in clarity might be warranted.” Judge Cox concurred specially, stating that such an instruction may confuse more than clarify.

Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228,

1233–35, 94 FEP Cases 107 (11th Cir.), cert. denied, __ U.S. __, 125 S. Ct. 811 (2004), affirmed the judgment on a jury verdict for the ADEA defendant. The court held that plaintiff’s proposed pretext instruction described the law accurately, but that the use of such instructions, while proper, is not compulsory.

Even if Palmer were not controlling here, we would still hold
there was no error in failing to give Conroy’s requested instruction. Conroy argues that the jury was misled to believe that it could not infer discrimination or retaliation from a finding of pretext due to the district court’s charge to the jury that (1) it was Conroy’s burden to prove discrimination and (2) the jury could not second guess Abraham Chevrolet’s legitimate business decisions. We do not agree, however, that either of these instructions misled the jury. First, the instruction on burden of proof required Conroy to establish discrimination, but it did not limit the methods by which he could prove it. Second, although the business judgment instruction explained to the jury that it could not second guess Abraham Chevrolet’s legitimate business motives, it did not require the jury to believe that any of the legitimate reasons advanced by the employer were in fact the true motivations behind Conroy’s discharge. Not only do we reject Conroy’s assertion that these instructions inhibited the jury from inferring discrimination or retaliation based on a finding of pretext, but we consider them both to be standard jury instructions that accurately reflect the law in this Circuit.

 

Though we do acknowledge that Conroy’s pretext
instruction is also a correct statement of law, we can only reverse the district court’s decision if (1) the contents of the requested instruction were not adequately covered by the jury charge and (2) Conroy suffered prejudicial harm. . . . The charge to the jury gave instructions on drawing inferences from the evidence and weighing the credibility of witnesses. This was sufficient to allow the jury to find discrimination or retaliation so long as they disbelieved Abraham Chevrolet’s explanation for Conroy’s termination. We also find it significant that Conroy’s counsel made good use of his opportunity to argue pretext to the jury in closing statements:

 

A claim has been made, there is no confession. Nobody ever confesses in a discrimination case. You’re going to have [to] weigh the testimony and decide do you think age had something to do with it. And I would suggest to you that when the man who fires him or without any warning, any documented reports of anything going wrong and comes up here with inconsistent statements that you can read into, that inconsistency and make an inference that, perhaps, the reason that was given by them may not have been the real reason. That’s going to be one of the jury instructions[,] that you can read into and understand what the evidence is, make reasonable inferences in terms of their explanation . . . You can certainly read into that. If there’s an inconsistent reason, then the age maybe had something to do with it.

 

We therefore reject Conroy’s contention that he was
prejudiced by the district court’s failure to give his requested instruction. . . . Accordingly, we find no reversible error and hold that the district courts, though permitted, are not required to give the jury a specific instruction on pretext in employment discrimination cases.

Id. at 1234–35.

D. “Business Judgment” Instructions

 

1. Questions to Be Considered

 

The risk to fairness in a “business judgment” instruction is that,

without more, it can readily short-circuit the process of deliberation by leading jurors to believe they should not question the sincerity of the proffered nondiscriminatory reasons. Its specificity winds up trumping the general instructions about credibility and the weight of the evidence.

Even trial judges have made this mistake, granting defendants

summary judgment or judgment as a matter of law without even considering the evidence against the defendant, on the ground that the adverse employment decision was first and foremost a business decision they are not allowed to second-guess:

  • Byrnie v. Town of Cromwell Public Schools, 73 F.Supp.2d 204, 214, 85 FEP Cases 307 (D. Conn. 1999), relied on the “business judgment” doctrine in refusing to compare the candidates’ qualifications, and granted summary judgment to the Title VII, ADEA, and State-law defendant. Reversing, the Second Circuit relied on the fact that plaintiff was better-qualified on paper, and that there were numerous procedural and substantive anomalies raising doubts about the defendant’s good faith in evaluating the candidates. It stated: “ That is to say that ‘[w]hile the business judgment rule protects the sincere employer against second-guessing of the reasonableness of its judgments, it does not protect the employer against attacks on its credibility.’” Byrnie v. Town of Cromwell, Board of Education, 243 F.3d 93, 105, 85 FEP Cases 323 (2d Cir. 2001).
  • Wexler v. White’s Furniture, 317 F.3d 564, 576–78, 90 FEP Cases 1551 (6th Cir. 2003) (en banc), reversed the grant of summary judgment to the ADEA defendant. The court held that the lower court paid unwarranted deference to the defendant’s business judgment in blaming plaintiff for the store’s low sales. The court held: “A plaintiff can refute the legitimate, nondiscriminatory reason that an employer offers to justify an adverse employment action ‘by showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.’” Id. at 576.

 

The district court therefore erred by invoking the
business judgment rule to exclude consideration of evidence relevant to the question of pretext. As a result, the district court ignored inferences in favor of Wexler that can be drawn from the evidence about whether it was reasonable to blame him for the Morse Road store’s declining sales. Wexler produced evidence indicating that White’s was aware that the decline in revenue was not his fault. He pointed to evidence showing that the management of White’s knew that the company’s advertising strategy had hurt sales throughout the chain, including a decrease in sales at the Morse Road store. If believed, a trier of fact could reasonably infer that the justification for Wexler’s demotion was insufficient to warrant the adverse decision.

Id. at 577. Judges Krupansky and Boggs dissented. Id. at 578–97.

  • McCowan v. All Star Maintenance, Inc., 273 F.3d 917, 926, 87 FEP Cases 596 (10th Cir. 2001), reversed the grant of summary judgment to the Title VII and § 1981 national-origin or ethnic discrimination plaintiffs, commenting on the short0-circuiting of analysis below by defendant’s talismanic invocation of “business judgment”: “ Although the district court did not evaluate All Star’s explanation for terminating Plaintiffs against this evidence, the employer’s business judgment cannot be immunized from the totality of the circumstances inquiry.”
  • Beaird v. Seagate Technology, Inc., 145 F.3d 1159, 1169, 76 FEP Cases 1865 (10th Cir.), cert. denied, 525 U.S. 1054 (1998), affirmed in part and reversed in part the grant of summary judgment to the defendant, stating:
But this principle does not immunize all potential “business judgments” from judicial review for illegal discrimination. . . . Such a doctrine would defeat the entire purpose of the ADEA. . . . There may be circumstances in which a claimed business judgment is so idiosyncratic or questionable that a factfinder could reasonably find that it is a pretext for illegal discrimination.

 

The Eighth Circuit is the only Circuit to require that this type of

instruction be given when requested, but it also has a pattern instruction informing the jury that it is permitted, but not required, to draw the inference of unlawful motive from proof that the defendant’s proffered nondiscriminatory reasons are false.

The text of the Seventh Circuit’s “cautionary” instruction and the

Eighth Circuit’s instruction illustrate the dangers of going down this road. Both tell jurors to ignore defendant’s unreasonableness, but that unreasonableness can be powerful evidence of discrimination. The overly harsh treatment of a black or Hispanic or female or older or sabbatarian employee, compared with others from different groups, is one of the things a jury would rationally and accurately find unreasonable. Telling them to disregard such matters invites miscarriages of justice.

Courts should rethink their willingness to issue “business

judgment” decisions in the absence of instructions making clear that the jury must examine the bona fides of the defendant’s exercise of business judgment.

In addition, cautionary instructions must be balanced. A natural

counterbalance to the “business judgment” type of instruction would be provided by Village of Arlington Heights v. Metropolitan Housing Development Corp. , 429 U.S. 252, 267 (1977): “Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.” (Footnote omitted.)

2. First Circuit Case Law

 

Kelley v. Airborne Freight Corp., 140 F.3d 335, 350–51, 76 FEP

Cases 1340 (1st Cir.), cert. denied, 525 U.S. 932 (1998), affirmed judgment on a jury verdict for the ADEA and Massachusetts-law plaintiff in the amounts of $1,244,152.24 on the ADEA claim, $3,136,858.29 on the Massachusetts Chapter 151B claim, and awarded attorney fees of $190,000. The court held that, while a business-judgment instruction might have been useful, it was not required:

While perhaps a business judgment instruction might have been useful in this case, its omission does not provide a basis for undermining the adequacy of the charge as a whole. We cannot see how the jury could have thought that it was free to find that age had a determinative influence on Kelley’s discharge if it merely disagreed with Airborne’s business judgment. The district court instructed the jury, on more than one occasion, that Kelley could prevail on his federal claim only if he proved by a preponderance of the evidence that the he would not have been fired but for his age. Interrogatory number 2, which the jury answered affirmatively, asked “has the plaintiff proved that his age had a determinative influence on defendant’s decision to discharge him?” These instructions did not permit or suggest that the jury could predicate a finding of age discrimination on their disagreement with Airborne’s business judgment. Similarly, we cannot agree that the instruction prevented the jury from focusing on the state of mind of the decisionmaker.

(Footnote omitted.)

3. Fifth Circuit Case Law

 

Julian v. City of Houston, 314 F.3d 721, 727, 90 FEP Cases 887

(5th Cir. 2002), affirmed the judgment on a jury verdict for the ADEA plaintiff, and held that the lower court did not abuse its discretion in denying defendant’s proposed “business judgment” instruction where the lower court covered the substance of such an instruction in other language:

Your verdict should be for the defendant if you find that the
defendant has proved that plaintiff would not have received the promotion regardless of his age. You should not find that the decision is unlawful just because you may disagree with the defendant’s stated reason or because you believe the decision was harsh or unreasonable, as long as defendant would have reached the same decision regardless of plaintiff’s age.
….

 

It is not against the law for an employer to fail to promote an
employee who is over forty years of age if the reason for doing so is unrelated to the employee’s age….

 

If you determine that Julian was not promoted because of
factors other than his age, you must decide in favor of the City.

 

Incorrectly citing Julian as approving business-judgment

instructions rather than the mere choice between two different forms of such an instruction, the Fifth Circuit held that the giving of a business-judgment instruction was not plain error. Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568, 581, 9 Wage & Hour Cas.2d (BNA) 865 (5th Cir. 2004) (FLSA retaliation). The instruction at issue was:

You may not return a verdict for Ms. Kanida just because you might disagree with Gulf Coast’s or Nursefinders’ actions or believe them to be harsh or unreasonable. Under the law, employers are entitled to make employment decisions for a good reason, for a bad reason, or for no reason at all, so long as the decision is not motivated by unlawful retaliation. You should not second-guess Gulf Coast or Nursefinders’ decision or substitute your own judgment for theirs.

Id. at 581 n.13.

4. Seventh Circuit Case Law

 

Wichmann v. Board of Trustees of Southern Illinois University,

180 F.3d 791, 804–05, 79 FEP Cases 1673 (7th Cir. 1999), vacated and remanded for reconsideration in light of vacated, and case remanded to the United States Court of Appeals for the Seventh Circuit for further consideration in light of Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S. Ct. 631, 145 L.Ed.2d 522 (2000), 528 U.S. 1111 (2000), affirmed the judgment on a jury verdict for the ADEA plaintiff, and held that the trial court did not abuse its discretion in refusing to give defendant’s proffered “business judgment” instruction:

The jury instructions given were accurate—to find liability
only if “Plaintiff’s age was a substantial motivating factor in the decision to terminate his employment, that is, but for Plaintiff’s age, his employment would not have been terminated.” But according to the University, the jury might have been improperly swayed by the facts that Wichmann was a sympathetic plaintiff, capable, hardworking, popular, and that his firing could have seemed unwise or unfair. The ADEA, the University argues, does not prohibit incompetence, stupidity or general injustice by employers, but only age discrimination. . . . The University contends that for these reasons the trial court stated the law insufficiently to the point of misleadingness. Our civil justice system, however, is based on the idea that “the jury is well-equipped to evaluate the evidence and use its good ‘common sense’ to come to a reasoned decision.” . . . A judge “need not deliver instructions describing all valid legal principles. . . .” . . . Generally speaking, “the judge may and usually should leave the subject to the argument of counsel.” . . .

 

All parties are entitled to jury instructions which are accurate
and complete. But trial courts need not take any extraordinary measures in instructing the jury to protect employers who make foolish or inequitable decisions about sympathetic employees. In employment discrimination law, as in tort law, one takes one’s plaintiffs as one finds them, sympathetic or not. Moreover, a defendant cannot escape the fact that a jury must use its good common sense in addressing how much, if at all, the foolishness or unfairness of the employer’s decision weighs in the evidence of pretext. Since the challenged jury instruction involved no misstatement or insufficient statement of the law, we need not consider whether the University was prejudiced by any error.

(Citations omitted.)

5. Seventh Circuit Draft Model Cautionary Instruction 3.07In deciding Plaintiff’s claim, you should not concern
yourselves with whether Defendant’s actions w ere wise, reasonable, or fair. Rather, your concern is only whether Plaintiff has proven that Defendant [adverse employment action] him [because of race/sex] [in retaliation for complaining about discrimination].

 

6. Eighth Circuit Model Instructions 5.58 and 5.94

 

The text of Eighth Circuit Model Instruction 5.58 is identical to that

of Model Instruction 5.94; only the Committee Comments differ, and their only difference is that the last case cited in the Comment below is not mentioned in the Comment to Model Instruction 5.94.

5.58 BUSINESS JUDGMENT INSTRUCTION

 

You may not return a verdict for plaintiff just because you
might disagree with defendant’s (decision) 1 or believe it to be harsh or unreasonable.

 

Committee CommentsIn Walker v. AT&T Technologies, 995 F.2d 846 (8th Cir.
1993), the Eighth Circuit ruled that it is reversible error to deny a defendant’s request for an instruction which explains that an employer has the right to make subjective personnel decisions for any reason that is not discriminatory. Moreover, the Circuit has expressly approved the language of the instruction set forth here. See Wolff v. Brown, 128 F.3d 682, 685 (8th Cir. 1997) (“In an employment discrimination case, a business judgment instruction is ‘crucial to a fair presentation of the case,’ and the district court must offer it whenever it is proffered by the defendant.”). Cf. Blake v. J.C. Penney Co., 894 F.2d 274, 281 (8th Cir. 1990) (upholding a different business judgment instruction as sufficient).

 

Notes on Use1. This instruction makes reference to the defendant’s
“decision.” It may be modified if another term—such as “actions” or “conduct”—is more appropriate.

 

7. Ninth Circuit Comment on Model Instruction 14.1

 

In the Comment to Model Instruction 14.1 (Age Discrimination—

Disparate Treatment—Elements and Burden Of Proof—Discharge), the Ninth Circuit Jury Instruction Manual states:

The court should also consider whether a business

judgment instruction may be required. In Walker v. AT & T Technologies, 995 F.2d 846 (8th Cir.1993), the Eighth Circuit, in an ADEA case, held it was reversible error not to give a business judgment instruction. See also Doan v. Seagate Technology, Inc., 82 F.3d 974, 977–78 (10th Cir.1996); Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1425–26 (10th Cir.1993). The Ninth Circuit has not ruled on this issue in a published opinion. For a proposed business judgment instruction see e.g. Kevin F. O’Malley, et al., Federal Jury Practice and Instructions § 171.75 (5th ed. 2001).

E. Mixed Motives

 

1. Questions to Be Considered

 

a. Who Wins the Verdict if Both Sides Make
their Respective Showings?

 

If plaintiff shows that a forbidden characteristic was a motivating

factor but defendant carries its burden of showing the “same decision” defense, the Seventh Circuit Draft Model Instruction 3.01(c) says in the context of Title VII that the verdict should be for plaintiff, but no damages should be awarded.

The Eighth Circuit pattern instructions cover ADEA, § 1991, and

§ 1983 mixed-motive cases, and correctly state that the verdict must be for the defendant if the jury finds that the same decision would have been made anyway. There is no Title VII discrimination mixed-motive instruction, and the notes under the mixed-motives instructions do not state that Title VII discrimination cases must be treated differently. This creates the risk that someone, somewhere in the states within the Circuit will use one of these instructions in a Title VII mixed-motive case. Its proposed verdict form in complex cases can be applied to any kind of mixed-motive case.

b. Should Jurors Know Who Has the Burden of
Proving the “Same Decision”?

 

The Eighth Circuit instruction system for mixed-motives cases is

elaborate, but flawed. In each instance, its mixed-motive instructions fail to inform the jury that, once the plaintiff has proven that an impermissible factor formed part of the defendant’s motivation for the challenged decision, it is the defendant that has the burden of proving that it would have made the same decision in the absence of discrimination, not the plaintiff having the burden of showing defendant would not have made the same decision. The wording of the instruction might even lead a legally unsophisticated jury to think that the plaintiff somehow bears the burden of showing the “same decision.”

2. Seventh Circuit Draft Model Instruction Comments 3.01(c)

 

The Committee Comments to the Draft Model Instructions

discuss mixed-motive cases and their effect on the draft model instructions:

In such a case, the pattern instruction (drawn from
Gehring v. Case Corp., 43 F.3d 340, 344 (7th Cir. 1994), which did not address a mixed motive issue), would call upon the jury to decide whether the plaintiff had disproved the mixed motive, after which the jury would decide whether the defendant had proven it. Under such circumstances, the Committee recommends the following language instead of the pattern instruction:

 

Plaintiff must prove by a preponderance of the evidence that his [protected class] was a motivating factor in Defendant’s decision to [adverse employment action] him. A motivating factor is something that contributed to Defendant’s decision.If you find that Plaintiff has proved that his [protected class] contributed to Defendant’s decision to [adverse employment action] him, you must then decide whether Defendant proved by a preponderance of the evidence that it would have [adverse employment action] him even if Plaintiff was not [protected class]. If so, you must enter a verdict for the Plaintiff but you may not award him damages.

 

The Committee recommends use of a verdict form that
makes clear, if no damages are awarded, whether the jury decided the plaintiff had not proven her claim or decided that the defendant had met its burden on the mixed motive issue. Without clear guidance in the circuit case law, the Committee cannot offer assistance in determining when a “mixed motive” instruction is appropriate.

 

3. Eighth Circuit Model Instructions 5.11, 5.21, 5.31, and 5.92

 

a. 5.11 ADEA—Disparate Treatment—Essential
Elements (Mixed Motive Case)

 

Your verdict must be for plaintiff [and against defendant
__________] 1 [on plaintiff’s age discrimination claim] 2 if all the following elements have been proved by the [(greater weight) or (preponderance)] 3 of the evidence:

 

First, defendant [discharged] 4 plaintiff; andSecond, plaintiff’s age was a motivating factor 5 in
defendant’s decision.

 

However, your verdict must be for defendant if any of the
above elements has not been proved by the [(greater weight) or (preponderance)] of the evidence, or if it has been proved by the [(greater weight) or (preponderance)] of the evidence that defendant would have [discharged] plaintiff regardless of [his/her] age.

 

Committee Comments* For a pretext case, the format of Model Instruction 5.91,
infra, is recommended.

 

This instruction is designed to submit the issue of liability
in “disparate treatment” cases brought pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–634 (1994). The burden-shifting analysis used in this instruction had been adopted by the Supreme Court in “mixed motive” cases under both Title VII and 42 U.S.C. § 1983. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 286-87 (1977). Moreover, a similar burden-shifting approach has been legislatively adopted in all Title VII cases by virtue of the Civil Rights Act of 1991. See Introductory Note to Section 5.

 

To be sure, there is an important difference between Title VII
cases and ADEA cases in the use of this format. In Title VII cases, the plaintiff prevails on the issue of liability by showing that discrimination was a “motivating factor” in the challenged employment decision, and a finding that the employer would have made the “same decision” in the absence of any discriminatory motive precludes an award of damages or reinstatement, but does not preclude an award of attorney fees or equitable relief. 42 U.S.C. 2000e-2(m). It is unclear whether the same result would occur in an age discrimination case. See Fast v. Southern Union Co., Inc., 149 F.3d 885, 889 (8th Cir. 1998) and Breeding v. Arthur J. Gallagher and Co., 164 F.3d 1151, 1156 (8th Cir. 1999) (same) (citing Fast).

 

At the court’s option, a short statement which defines the
Age Discrimination in Employment Act may be included at the beginning of this instruction or as a separate instruction. The following language, based on Grebin v. Sioux Falls Indep. Sch. Dist. No. 49-5, 779 F.2d 18, 20 n.1 (8th Cir. 1985), is recommended:

 

Under the Age Discrimination in Employment Act, it is
unlawful for an employer to make an employment decision on the basis of an individual’s age when that individual is 40 years of age or older.

 

Notes on Use1. Use this phrase if there are multiple defendants.2. The bracketed language should be inserted when the
plaintiff submits more than one claim to the jury.

 

3. Select the bracketed language which corresponds to the
burden-of-proof instruction given.

 

4. This instruction is designed for use in a discharge case.
In a “failure to hire,” “failure to promote,” or “demotion” case, the instruction must be modified. Where the plaintiff resigned but claims a “constructive discharge,” this instruction should be modified. See infra Model Instruction 5.93.

 

5. The Committee believes that the phrase “motivating
factor” should be defined. See infra Model Instruction 5.96.

 

b. 5.21 42 U.S.C. § 1981—Race Discrimination—
Essential Elements (Mixed Motive Case)

 

Your verdict must be for plaintiff [and against defendant
__________] 1 [on plaintiff’s race discrimination claim] 2 if all the following elements have been proved by the [(greater weight) or (preponderance)] 3 of the evidence:

 

First, defendant [failed to hire] 4 plaintiff; andSecond, plaintiff’s race was a motivating factor 5 in
defendant’s decision.

 

However, your verdict must be for defendant if any of the
above elements has not been proved by the [(greater weight) or (preponderance)] of the evidence, or if it has been proved by the [(greater weight) or (preponderance)] of the evidence that defendant would have decided not to [hire] plaintiff regardless of [his/her] race.

(Essentially duplicative comments and notes omitted.)

c. 5.31 42 U.S.C. § 1983—Essential Elements
Mixed Motive Case)

 

Your verdict must be for plaintiff [and against defendant
__________] 1 [on plaintiff’s (sex) 2 discrimination claim] 3 if both of the following elements have been proved by the [(greater weight) or (preponderance)] 4 of the evidence:

 

First, defendant [discharged] 5 plaintiff; andSecond, plaintiff’s (sex) was a motivating factor 6 in
defendant’s decision[; and

 

Third, defendant was acting under color of state law]. 7
However, your verdict must be for defendant if any of the above elements has not been proved by the [(greater weight) or (preponderance)] of the evidence, or if it has been proved by the [(greater weight) or (preponderance)] of the evidence that defendant would have [discharged] plaintiff regardless of [his/her] (sex).

(Essentially duplicative comments and notes omitted.)

d. 5.92 Special Interrogatories to Elicit Findings in
Borderline Pretext/Mixed Motives Cases

 

DirectionsThe verdict in this case will be determined by your answers
to a series of questions set forth below. Make sure that you read the questions and notes carefully because they explain the order in which the questions should be answered and which questions may be skipped.

 

In Question No. 1, you will be asked whether plaintiff’s (age)
1 was a motivating factor 2 in defendant’s decision to [discharge] 3 [him/her]. If it has been proved that plaintiff’s (age) was a motivating factor in defendant’s decision, you must answer “yes” to Question No. 1. If it has not been proved, you must answer “no” to Question No. 1.

 

In Question No. 2, you will be asked whether plaintiff’s (age)
was a determining factor in defendant’s decision to [discharge] [him/her]. “(Age) was a determining factor” only if defendant would not have discharged plaintiff but for plaintiff’s (age). It does not require that (age) was the only reason for the decision made by defendant. 4 [You may find that (age) was a determining factor if you find defendant’s stated reason(s) for its decision are not the true reason(s), but are a pretext to hide [(age) (gender) (race)] discrimination.] 5 If it has been proved that plaintiff’s (age) was a determining factor in defendant’s decision, you must answer “yes” to Question No. 2. If it has not been proved, you must answer “no” to Question No. 2.

 

In Question No. 3, you will be asked whether defendant
would have [discharged] plaintiff regardless of [his/her] (age). If it has been proved that defendant would have discharged plaintiff regardless of [his/her] (age), you must answer “yes” to Question No. 3. If it has not been proved, you must answer “no” to Question No. 3.

 

Question No. 4 deals with the amount of damages
plaintiff is eligible to recover. In answering Question No. 4, you are instructed to assess plaintiff’s damages in accordance with Instruction ____ 6 [and Instruction ____]. 7

 

Question No. 5 deals with whether defendant’s conduct was
“willful,” as defined in Instruction ____. 8

 

QUESTIONSQuestion No. 1: Has it been proved by the [(greater weight)
or (preponderance)] of the evidence that plaintiff’s (age) 1 was a motivating factor 2 in defendant’s decision to [discharge] 3 [him/her]?

 

_____ Yes _____ No(Mark an “X” in the appropriate space)
Note: Continue on to Question No. 2 only if you answered “yes” to Question No. 1. If you answered “no” to Question No. 1, you need not answer Questions 2 through 5. You should have your foreperson sign and date this form because you have completed your deliberation on this age-discrimination claim.

 

Question No. 2: Has it been proved by the [(greater weight)
or (preponderance)] of the evidence that plaintiff’s (age) was a determining factor in defendant’s decision to [discharge] [him/her]?

 

_____ Yes _____ No(Mark an “X” in the appropriate space)
Note: Continue on to Question No. 3 only if you answered “no” to Question No. 2. If you answered “yes” to Question No. 2, go directly to Questions No. 4 and 5

 

Question No. 3: (Answer this question if you answered
“yes” to Question No. 1 and “no” to Question No. 2.) Has it been proved by the [(greater weight) or (preponderance)] of the evidence that defendant would have [discharged] plaintiff regardless of [his/her] (age)?

 

_____ Yes _____ No(Mark an “X” in the appropriate space)
Note: Continue on to Questions No. 4 and 5 only if you answered “no” to Question No. 3. If you answered “yes” to Question No. 3, have your foreperson sign and date this form because you have completed your deliberations on this age-discrimination claim.

 

Question No. 4: (Answer this question only if you answered
“yes” to Question No. 2 or “no” to Question No. 3.) What is the amount of plaintiff’s damages as that term is defined in Instruction _____? 6 $__________ (stating the amount [or, if you find that plaintiff’ damages have no monetary value, write in the nominal amount of One Dollar ($1.00)]). 7

 

Question No. 5: (Answer this question even if you answered
“yes” to Question No. 2 or “no” to Question No. 3.) Has it been proved by the [(greater weight) or (preponderance)] of the evidence that defendant’s conduct was “willful” as that term is defined in Instruction ____? 8

 

_____ Yes _____ No(Mark an “X” in the appropriate space)

 

___________________________________Foreperson
Date: ____________________

 

Committee CommentsSee Introductory Note to Section 5.These special interrogatories are designed for use where
the trial court is inclined to adhere to a mixed motive/pretext distinction but cannot readily classify a case under a “mixed motive” or “pretext” theory. For example, if plaintiff presents some direct evidence which does not clearly address the employment decision at issue, such as general statements of age bias by the employer, it may be unclear whether the case should be submitted under a “mixed motive” or “pretext” instruction. As explained below, the first three basic interrogatories will permit the court to create a complete record to permit analysis under either theory.

 

Question No. 1 is designed to test the proof on the
“motivating factor” issue. The note following Question No. 1 directs the jury to continue in its analysis only if it answers “yes” to this question. If the jury does not find that unlawful discrimination was a motivating factor, judgment may be entered for the defendant.

 

Question No. 2 is designed to test the ultimate issue in a
“pretext” case of whether plaintiff’s age, race, or other protected characteristics was a “determining factor” in the employment decision being challenged. As reflected in the note following Question No. 2, the plaintiff wins under either a pretext or mixed motive theory if the jury finds that unlawful discrimination was a “determining factor.” Thus, analysis on the issue of liability should end if the jury answers “yes” to Question No. 2. The jury must go on to Question No. 3 only if it found that discrimination was a motivating factor but not a “determining factor.”

 

Question No. 3 is designed to reach the final issue in a
“mixed motive” case. As noted above, the defendant clearly wins if the jury answers “no” to Question No. 1, and the plaintiff clearly wins if the jury answers “yes” to Question No. 2. It also is clear that the defendant wins if the jury answers “no” to Question No. 2 and “yes” to Question No. 3. Thus, the court will be revisited with the issue of whether a case should be classified as “mixed motive” or “pretext” only if the jury reaches Question No. 3 and only if the jury answers “no” to that question. Based on that jury finding, the plaintiff wins if the case is classified under a “mixed motive” theory, while the defendant wins if the case is classified under a “pretext” case theory.

 

Questions No. 1, 2 and 3 are to be submitted in lieu of,
not in conjunction with, any elements instruction. However, actual damages and, if appropriate, a “willfulness” or punitive damages instruction must also be submitted. The Committee makes no recommendation regarding whether all issues should be submitted to the jury simultaneously or whether jury deliberations should be bifurcated and damages and willfulness submitted separately from Questions No. 1, 2 and 3.

 

Notes on Use2. The Committee believes that the term “motivating factor”
may be of such common usage that it need not be defined. If the jury has a question regarding this term, the following may be a suitable definition: “The term ‘motivating factor’ means a consideration that moved the defendant toward its decision.” The phrase “a factor that played a part” also may be an appropriate substitute for the phrase “motivating factor.” See Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1101 (8th Cir. 1988). But cf. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977) (equating “motivating factor” with “substantial factor”).

 

3. These interrogatories are designed for use in a discharge
case. In a “failure to hire,” “failure to promote,” or “demotion” case, the interrogatories and directions must be modified.

 

Where the plaintiff resigned but claims that he or she was
“constructively discharged,” the directions must be modified and an additional interrogatory should be given as a threshold to the interrogatories shown above and the subsequent interrogatories will have to be renumbered. See infra Model Instruction 5.93. An appropriate interrogatory would be:

 

Question No. 1: Has it been proved by the [(greater weight)
or (preponderance)] of the evidence that defendant made plaintiff’s working conditions intolerable for the purpose of forcing plaintiff to resign?

 

_____ Yes _____ No(Mark an “X” in the appropriate space)
Note: Continue on to Question No. 2 only if you answered Question No. 1 “yes.” If you answered this question “no,” you need not answer Questions Nos. 2 through 6. You should have your foreperson sign this form because you have completed your deliberations on this age-discrimination claim.

 

4. The definition of the term “(age) was a determining
factor” is based on Grebin v. Sioux Falls Indep. School Dist. No. 49-5, 779 F.2d 18, 20 n.1 (8th Cir. 1985).

 

5. The bracketed phrase may be added at the court’s
option, in cases in which plaintiff relies primarily on indirect evidence/pretext to prove discriminatory motive.

 

6. Fill in the number of the “actual damages” instruction
here. See infra Model Instructions 5.12, 5.22, 5.32. In cases where special interrogatories are submitted instead of an elements instruction, the first two lines of the damages instruction should be modified as follows:

 

If you reach Question No. 4 of the Verdict Form, plaintiff’s
damages are defined as such sum as you find by the . . . .

 

7. Regarding the submission of the issue of nominal
damages, see infra Model Instructions 5.13, 5.23, 5.33.

 

8. Because this model set of interrogatories is designed
for age discrimination cases, Question No. 5 is designed to submit the issue of “willfulness.” See infra Model Instruction 5.14. If the issue of “willfulness” is not submitted in an age discrimination case, Question No. 5 should be omitted; otherwise, insert the number of the “willfulness” instruction here. In cases where special interrogatories are submitted instead of an elements instruction, the first sentence of Model Instruction 5.14 should be modified as follows:

 

If you reach Question No. 5 of the Verdict Form, then you
must consider whether the conduct of defendant was “willful.”

 

In race discrimination cases and constitutional
discrimination cases, Question No. 5 should be used to submit the issue of punitive damages, if appropriate. See infra Model Instructions 5.24, 5.34. If the issue of punitive damages is not submitted to the jury, Question No. 5 should be omitted. If the issue of punitive damages is submitted, the “Directions” section of these interrogatories should be modified as follows:

 

Question No. 5 deals with punitive damages that may be
assessed, in accordance with Instruction ___.

 

Similarly, the “Questions” section of the interrogatories
should be modified as follows:

 

Question No. 5: (Answer this question only if you
answered “yes” to Question No. 2 or “no” to Question No. 3). What amount, if any, do you assess for punitive damages as that term is defined in Instruction ___? $_________ (stating the amount or, if none, write the word “none”).

 

Finally, if the issue of punitive damages is submitted in
connection with these interrogatories, the first sentence of the second paragraph of the model instructions for punitive damages (Model Instructions 5.24, 5.34, infra) should be modified as follows:

 

If you reach Question No. 5 of the Verdict Form, . . .

 

4. Eighth Circuit Proposed Model Instructions in
Employment Cases

 

These are in the same format as the existing instructions,

except that Instruction 5.91 is omitted.

5. Ninth Circuit Model Jury Instruction 12.1A

 

12.1A DISPARATE TREATMENT—WHERE EVIDENCE SUPPORTS “SOLE REASON” OR “MOTIVATING FACTOR”

 

The plaintiff has brought a claim of employment
discrimination against the defendant. The plaintiff claims that [his] [her] [[race] [color] [religion] [sex] [national origin]] was either the sole reason or a motivating factor for the defendant’s decision to [[discharge] [not hire] [not promote] [demote] [state other adverse action]] the plaintiff. The defendant denies that plaintiff’s [[race] [color] [religion] [sex] [national origin]] was either the sole reason or a motivating factor for the defendant’s decision to [[discharge] [not hire] [not promote] [demote] [state other adverse action]] the plaintiff [and further claims the decision to [[discharge] [not hire] [not promote] [demote] [state other adverse action]] the plaintiff was based upon [a] lawful reason[s]].Comment

 

Use this instruction and Instructions 12.1B and 12.1C
whenever the Title VII claim is based on disparate treatment.

 

For a definition of “adverse employment action” in
disparate treatment cases, see Instruction 12.4A.2.

 

The Civil Rights Act of 1991 clarified the extent to which
an improper motive may be the basis for liability when a defendant’s actions are based upon both lawful and unlawful motives. The Act rendered such cases triable by jury on the issue of compensatory and punitive damages. 42 U.S.C. § 1981a(c). The Act further clarified that a defendant is liable if the plaintiff shows that the discrimination was a “motivating factor” in the challenged decision or action, “even though other factors also motivated” the challenged action or decision and regardless of whether the case was one of “pretext” or “mixed motives.” 42 U.S.C. § 2000e-2(m).

 

Where the defendant would have made the same decision
in the absence of a discriminatory motive, the plaintiff’s remedies are limited under the 1991Act to declaratory or injunctive relief, as well as attorneys’ fees and costs. 42 U.S.C. § 2000e-5(g)(2)(B) (modifying Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). See also Washington v. Garrett, 10 F.3d 1421, 1432 n.15 (9th Cir.1993), for a discussion of remedy limitations under the 1991 Act.

 

The judge should consider providing the jury with the
following special verdict form to determine the jury’s findings on the question of sole or mixed motive.Special Verdict

 

1. Has the plaintiff proved by a preponderance of the
evidence, that the plaintiff’s [[race] [color] [religion] [sex] [national origin]] was the sole reason for the defendant’s decision to [ state adverse action]?

 

Yes No

 

If the answer to Question No. 1 is “yes,” proceed to Question No. 5. If the answer to Question No. 1 is “no,” proceed to Question No. 2.

 

2. Has the plaintiff proved by a preponderance of the
evidence that the plaintiff’s [[race] [color] [religion] [sex] [national origin]] was a motivating factor for the defendant’s decision to [state adverse action]?

 

Yes No

 

If the answer to Question No. 2 is “no,” do not answer any further questions on [the plaintiff’s claim of disparate treatment]. If the answer to Question No. 2 is “yes,” proceed to Question No. [if same decision affirmative defense applies: 3] [if same decision affirmative defense does not apply: 5]

 

[If “same decision” affirmative defense applies, add
question 3, and if appropriate, question 4:]

 

3. Has the defendant proved by a preponderance of the
evidence that the defendant’s decision to [state adverse action] was also motivated by a lawful reason?

 

Yes No

 

If your answer to Question No. 3 is “no,” proceed to Question No. 5. If your answer to Question No. 3 is “yes,” proceed to Question No. 4.

 

4. Has the defendant proved, by a preponderance of the
evidence, that the defendant would have made the same decision to [state adverse employment action] even if the plaintiff’s [[race] [color] [religion] [sex] [national origin]] had played no role in the defendant’s decision to [ state adverse employment action] ?

 

Yes No

 

If your answer to Question No. 4 is “yes,” do not answer any further questions on damages related to the plaintiff’s claim of disparate treatment.If your answer to Question No. 4 is “no”, proceed to Question 5.

 

5. [The judge should draft further special verdict questions
to cover damages, including punitive damages if appropriate.]Approved 8/2004

 

6. Eleventh Circuit Model Jury Instructions

 

a. 1.1.1 Public Employee First Amendment Cases

 

* * *

 

On the other hand, in order to prove that the Plaintiff’s
protected speech activities were a “substantial or motivating” factor in the Defendants’ decision, the Plaintiff does not have to prove that the protected speech activities were the only reason the Defendants acted against the Plaintiff. It is sufficient if the Plaintiff proves that the Plaintiff’s protected speech activities were a determinative consideration that made a difference in the Defendants’ adverse employment decision.

 

Finally, for damages to be the proximate or legal result of
wrongful conduct, it must be shown that, except for such conduct, the damages would not have occurred.

 

[If you find in the Plaintiff’s favor with respect to each of the
facts that the Plaintiff must prove, you must then decide whether the Defendants have shown by a preponderance of the evidence that the Plaintiff would [have been dismissed] [not have been promoted] for other reasons even in the absence of the protected speech activity. If you find that the Plaintiff would [have been dismissed] [not have been promoted] for reasons apart from the speech activity, then your verdict should be for the Defendants.]

 

If you find for the Plaintiff [and against the Defendants on
their defense], you must then decide the issue of the Plaintiff’s damages.

 

* * *

 

SPECIAL INTERROGATORIES TO THE JURY

 

Do you find from a preponderance of the evidence:[1. That the actions of the Defendants were “under color”
of the authority of the State?

 

Answer Yes or No ]

 

1. That the Plaintiff engaged in speech activity concerning
[describe the subject of public concern]?

 

Answer Yes or No

 

2. That such speech activity was a substantial or
motivating factor in the Defendants’ decision to [discharge the Plaintiff from employment] [not promote the Plaintiff]?

 

Answer Yes or No

 

3. That the Defendants’ acts were the proximate or legal
cause of damages sustained by the Plaintiff?

 

Answer Yes or No

 

[Note: If you answered No to any of the preceding questions
you need not answer any of the remaining questions.]

 

4. That the Plaintiff [would have been discharged from
employment] [would not have been promoted] for other reasons even in the absence of the Plaintiff’s protected speech activity?

 

Answer Yes or No

 

[Note: If you answered Yes to Question No. 4 you need not
answer the remaining questions.]

 

b. 1.2.1 Title VII—Civil Rights Act (partial)

 

* * *

 

In this case the Plaintiff makes a claim under the Federal
Civil Rights statutes that prohibit employers from discriminating against employees in the terms and conditions of their employment because of the employee’s [race] [sex or gender].

 

More specifically, the Plaintiff claims that [he] [she] was
[discharged from employment] [denied a promotional opportunity] by the Defendant because of the Plaintiff’s [race] [sex or gender].

 

The Defendant denies that the Plaintiff was discriminated
against in any way and asserts that [describe the Defendant’s theory of defense or affirmative defenses, if any].

 

In order to prevail on this claim, the Plaintiff must prove each
of the following facts by a preponderance of the evidence:

 

First: That the Plaintiff was [discharged from employment]
[denied a promotional opportunity] by the Defendant; and

 

Second: That the Plaintiff’s [race] [sex or gender] was a
substantial or motivating factor that prompted the Defendant to take that action.

 

[In the verdict form that I will explain in a moment, you will
be asked to answer a series of questions concerning each of these factual issues.]

 

You should be mindful that the law applicable to this case
requires only that an employer not discriminate against an employee because of the employee’s [race] [sex or gender]. So far as you are concerned in this case, an employer may [discharge] [fail to promote] an employee for any other reason, good or bad, fair or unfair, and you must not second guess that decision or permit any sympathy for the employee to lead you to substitute your own judgment for that of the Defendant even though you personally may not favor the action taken and would have acted differently under the circumstances. Neither does the law require an employer to extend any special or favorable treatment to employees because of their [race] [sex or gender].

 

On the other hand, it is not necessary for the Plaintiff to
prove that the Plaintiff’s [race] [sex or gender] was the sole or exclusive reason for the Defendant’s decision. It is sufficient if the Plaintiff proves that [race] [sex or gender] was a determinative consideration that made a difference in the Defendant’s decision.

 

[If you find in the Plaintiff’s favor with respect to each of the
facts that the Plaintiff must prove, you must then decide whether the Defendant has shown by a preponderance of the evidence that the Plaintiff would [have been dismissed] [not have been promoted] for other reasons even in the absence of consideration of the Plaintiff’s [race] [sex or gender]. If you find that the Plaintiff would [have been dismissed] [not have been promoted] for reasons apart from the Plaintiff’s [race] [sex or gender], then your verdict should be for the Defendant.]

 

If you find for the Plaintiff and against the Defendant on its
defense, you must then decide the issue of the Plaintiff’s damages:

 

* * *

 

F. Harassment and the Affirmative Defense

 

1. Questions to Be Considered

 

a. Should There Be Separate Pattern Instructions
for Harassment Cases?

 

The Fifth Circuit does not have pattern instructions for such

cases, but all other Circuits with pattern instructions do.

b. Can Sexual Flirtation and Gender-Related Jokes Never
Be Considered Part of a Hostile Environment?

 

The Seventh Circuit draft model Ameliorating Instruction begins:

“Conduct that amounts only to ordinary socializing in the workplace, such as occasional horseplay, sexual flirtation, sporadic or occasional use of abusive language, gender related jokes, and occasional teasing, does not constitute an abusive or hostile environment.” The word “occasional” modifies only three of the five illustrative types of conduct listed, creating the implication that constant sexual flirtation and constant gender related jokes are always part of “ordinary socializing” and can never be part of a hostile environment. That is not the law. This needs to be reworded.

c. Does an Employee Have to Take the Workplace “As Is”?

 

The Seventh Circuit draft model Ameliorating Instruction ends:

“Only conduct amounting to a material change in the terms and conditions of employment amounts to an abusive or hostile environment.” This implies that any women transferred into an already hideously hostile environment have no claim unless it becomes worse. It would be better to begin this sentence with “Only conduct having a material effect on” and then continue as before.

d. Constructive Discharge as a Tangible Employment Action

 

The Seventh Circuit Draft Model Jury Instructions cite

Pennsylvania State Police v. Suders, __ U.S. __, 124 S. Ct. 2342, 93 FEP Cases 1473 (2004), erroneously for the proposition that a plaintiff seeking to prove constructive discharge as a tangible employment action must show that defendant “purposely made his working conditions so intolerable that a reasonable person in his position would have had to quit.”

A reasonable juror hearing this language would conclude that

defendant had to intend to get rid of the plaintiff, or that the defendant at least had to take some affirmative action that would result in the resignation of a reasonable employee. Thus, an employer that wanted to keep the plaintiff employed, but repeatedly delayed action, or limited itself to remedial half-measures to avoid losing the harasser, could not be found to have engaged in a constructive discharge. Suders held that the Faragher / Ellerth affirmative defense is available unless the defendant takes official action that would cause a reasonable person to resign, but that is a far cry from stating that defendant intended that result, or had to take an affirmative step even without intending that result.

In most harassment cases, the error would have little effect

because the evidence that was inadequate to show purpose will normally be adequate to defeat the affirmative defense.

However, this instruction could contaminate the jury’s

consideration of a stand-alone constructive-discharge claim.

e. Why Excuse Defendants from Liability if They Had
Longstanding Knowledge of a Serial Co-Worker
Harasser Who Sexually Assaults Female Employees,
But Only the New Employees, and Only Once per
Victim?

 

The Seventh and Eighth Circuit instructions on co-worker

harassment require plaintiffs to show that the defendant was aware of the conduct affecting the plaintiff but failed to take reasonable steps to correct the situation. It occurs with some frequency, however, that serial harassers single out only new female employees, without time to develop allies in the workplace, for groping and other misconduct. All of us would agree that an employer armed with this knowledge in advance of the hiring of a new female employee should be liable when the pattern recurs as to the new hire. In many cases, the employer was on notice of the problem before the plaintiff walked into the situation. The instructions should encompass this situation.

The Eleventh Circuit’s Model Instruction 1.2.2 is a model of

clarity that accurately sets forth this aspect of the law: “That the Defendant exercised reasonable care to precent and correct promptly, any sexually harassing behavior in the workplace.”

f. Why Not State that a Corrective Measure Should
be Proportionate to the Seriousness of the Offense?

 

The Ninth Circuit’s pattern instruction 12.2C states that an

effective remedy should be proportionate to the seriousness of the offense.

This seems useful because it gives some guidance to the jury.

It is easy to see the instruction helping defendants in some cases where jurors might think the only effective remedy is termination, and helping plaintiffs in cases of repeated half-measures.

g. Why Not State that the Defendant Has the Burden
of Establishing the Affirmative Defense?

 

The Seventh and Ninth Circuits clearly state that defendant has

the burden of proof on the affirmative defense.

The Eighth Circuit instructions do not state who has the burden,

but use the passive voice of which the Manual disapproves: “Your verdict must be for defendant . . . if it has been proved . . .” Jurors should be told plainly that defendant has the burden of proof.

h. Why Not State that Plaintiff Wins if the Defendant
Fails to Establish the Affirmative Defense?

 

The Seventh Circuit Draft Model Instructions 3.05B state at the

end: “If you find that Defendant has not proved both of these things, your verdict should be for Plaintiff.” The Eighth Circuit Pattern Instruction 5.42(A) is confusingly written and does not clarify this question. The Ninth Circuit does not clarify this question. It is clearer to complete the circle on this instruction.

i. Does the Objective Test Depend on a “Reasonable
Person in the Plaintiff’s Circumstances” or
“Reasonable [Man] [Woman] in the
Plaintiff’s Circumstances”?

 

The Ninth Circuit is the only Circuit whose pattern instructions

refer to the reasonable man or woman in the plaintiff’s circumstances.

j. Why Limit Constructive Knowledge of Harassment to
the Knowledge of Plaintiff’s Direct Supervisors?

 

The Eleventh Circuit’s Model Instruction 1.2.2 states that the

defendant is liable for harassment by nonsupervisory fellow employees only if the “Plaintiff’s supervisor or successively higher authority” knew or should have known of the hostile environment and took no action.

Employers commonly have sexual harassment policies

allowing employees to complain through an “800” number to a service organization, or to corporate headquarters, or to the local or regional HR officials. None of these persons are in plaintiff’s chain of direct supervision, but the knowledge of each of these persons would be attributable to the defendant under ordinary agency principles.

2. Seventh Circuit Draft Model Instructions 3.04, 3.05A, and 3.05B

 

a. 3.04 General Sex (or Race) Harassment
Instruction by Co-Employee or Third-Party

 

In this case, Plaintiff claims that he was [racially/sexually]
harassed at work. To succeed on this claim, Plaintiff must prove seven things by a preponderance of the evidence:

 

1. Plaintiff was subjected to [alleged conduct];2. The conduct was unwelcome;3. The conduct was because Plaintiff was [race/sex];

4. At the time the conduct occurred, Plaintiff believed that the

conduct made his work environment hostile or abusive;

 

5. The conduct was sufficiently severe or pervasive that a
reasonable person in plaintiff’s position would find plaintiff’s work environment to be hostile or abusive;

 

6. Defendant knew or should have known about the conduct; and
7. Defendant did not take reasonable steps to correct the
situation.

 

If you find that Plaintiff has proved by a preponderance of the
evidence each of the things required of him, then you must find for Plaintiff. However, if you find that Plaintiff did not prove by a preponderance of the evidence each of the things required of him, then you must find for Defendant.Committee Comments

 

a. Authority: See Rizzo v. Sheahan, 266 F.3d 705, 711 (7th
Cir. 2001); Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806 (7th Cir. 2000); Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 212 F.3d 976 (7th Cir. 2000); Parkins v. Civil Contractors, Inc., 163 F.3d 1027, 1032 (7th Cir. 1998).

 

b. No Dispute as to Alleged Conduct: If no dispute exists
that the defendant’s alleged conduct took place, a court should simplify the instruction by changing the beginning of the instruction as follows:

 

In this case, Plaintiff claims that she was [racially/sexually] harassed at work [describe conduct]. To succeed in her claim, Plaintiff must prove six things by a preponderance of the evidence:1. The conduct was unwelcome;2. Plaintiff was subjected to this conduct because she was [race/sex];

 

The remainder of the instruction should remain the same.

 

c. Hostile or Abusive Work Environment: In some cases, a
court may want to give the jury more guidance on what constitutes a hostile or abusive work environment. If so, the Committee suggests the following language:

 

To decide whether a reasonable person would find Plaintiff’s work environment hostile or abusive, you must look at all the circumstances. These circumstances may include the frequency of the conduct; its severity; its duration; whether it was physically threatening or humiliating, and whether it unreasonably interfered with the plaintiff’s work performance. No single factor is required in order to find a work environment hostile or abusive.

 

See Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998); Harris v. Forklift System, Inc., 510 U.S. 17, 23 (1993); Eighth Circuit Pattern Instructions § 5.42 Committee Comments.

 

d. Ameliorating Instruction: As an optional addition to the
instruction, the Committee suggests that a court consider including the following language:

 

Conduct that amounts only to ordinary socializing in the workplace, such as occasional horseplay, sexual flirtation, sporadic or occasional use of abusive language, gender related jokes, and occasional teasing, does not constitute an abusive or hostile environment. Only conduct amounting to a material change in the terms and conditions of employment amounts to an abusive or hostile environment.

 

b. 3.05A General Supervisor Sex or Race Harassment
Instruction: With Tangble Employment Action

 

Plaintiff says that he was [racially/sexually] harassed by
[Alleged Supervisor]. To succeed on this claim, Plaintiff must prove seven things by a preponderance of the evidence.

 

1. [Name] was Plaintiff’s supervisor. A supervisor is
someone who can affect the conditions of Plaintiff’s employment. By this I mean someone who has the power to hire, fire, demote, promote, transfer or discipline Plaintiff.

 

2. Plaintiff was subjected to [alleged conduct];3. The conduct was unwelcome;4. The conduct was because Plaintiff was [race/sex];

5. The conduct was sufficiently severe or pervasive that a

reasonable person in plaintiff’s position would find plaintiff’s work environment to be hostile or abusive;

 

6. At the time the conduct occurred, Plaintiff believed that the
conduct made his work environment hostile or abusive; and

 

7. [Name’s] conduct caused Plaintiff [adverse employment action].If you find that Plaintiff has proved by a preponderance of the
evidence each of the things required of him, then you must find for Plaintiff. However, if you find that Plaintiff did not prove by a preponderance of the evidence each of the things required of him, then you must find for Defendant.Committee Comments

 

a. Scope: This instruction should be used where the parties
do not dispute that the plaintiff experienced a tangible employment action, such as a demotion, a discharge, or an undesirable reassignment. See Burlington Indus. v. Ellerth, 524 U.S. 742 (1998). In such situations, affirmative defenses are unavailable to the defendant. Id. See also Faragher v. City of Boca Raton, 524 U.S. 775 (1998). For cases where no tangible employment action took place, see Instruction 3.05B, below. For guidance on modifying the instruction in cases where the parties dispute whether the supervisor’s conduct led to a tangible employment action, see Committee comment d to Instruction 3.05B, below.

 

b. Supervisor Definition: See NLRB v. Kentucky River
Comm. Care, 532 U.S. 706, 713 (2001); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742 (1998); NLRB v. Yeshiva Univ . , 444 U.S. 672, 691 (1980); American Diversified Foods, Inc. v. NLRB, 640 F.2d 893, 894 (7th Cir. 1981).

 

c. Employer’s Vicarious Liability for Supervisor Conduct:
See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742 (1998); Rizzo v. Sheahan, 266 F.3d 705, 711 (7 th Cir. 2001); Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806 (7th Cir. 2000); Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 212 F.3d 976 (7th Cir. 2000); Parkins v. Civil Contractors, Inc., 163 F.3d 1027, 1032 (7th Cir. 1998).

 

d. Hostile or Abusive Work Environment: In some cases,
a court may want to give the jury more guidance on what constitutes a hostile or abusive work environment. If so, the Committee suggests the following language:

 

To decide whether a reasonable person would find Plaintiff’s work environment hostile or abusive, you must look at all the circumstances. These circumstances may include the frequency of the conduct; its severity; its duration; whether it was physically threatening or humiliating, and whether it unreasonably interfered with the plaintiff’s work performance. No single factor is required in order to find a work environment hostile or abusive.

 

See Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998); Harris v. Forklift System, Inc., 510 U.S. 17, 23 (1993); Eighth Circuit Pattern Instructions § 5.42 Committee Comments.

 

e. Constructive Discharge: If the adverse employment
action alleged by plaintiff is constructive discharge, the Committee suggests altering the instruction as follows:

 

7, [Name]’s conduct forced plaintiff to quit his job. To show
this, Plaintiff must prove that Defendant purposely made his working conditions so intolerable that a reasonable person in his position would have had to quit.

 

See Pennsylvania Police Dept. v. Suders, ___ U.S. ___, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004).

 

f. Facts Not in Dispute: A court should modify the instruction
to account for situations where facts are not in dispute. For example, if the parties do not dispute that the alleged harasser is the plaintiff’s supervisor, a court does not need to give the first element of the instruction. Similarly, if the parties do not dispute that the defendant’s alleged conduct took place, a court should describe the conduct at the beginning of the instruction and then modify the instruction by replacing the elements 2-4 with the following two elements:

 

2. The conduct was unwelcome;3. Plaintiff was subjected to this conduct because he was [race/sex];
The remainder of the instruction should remain the same.

 

c. 3.05B General Supervisor Sex or Race Harassment
Instruction: With No Tangible Employment Action

 

Plaintiff says that he was [racially/sexually] harassed by [Alleged Supervisor]. To succeed on this claim, Plaintiff must prove six things by a preponderance of the evidence.

 

1. [Name] was Plaintiff’s supervisor. A supervisor is
someone who can affect the conditions of Plaintiff’s employment. By this I mean someone who has the power to hire, fire, demote, promote, transfer or discipline Plaintiff.

 

2. Plaintiff was subjected to [alleged conduct];3. The conduct was unwelcome;4. The conduct was because Plaintiff was [race/sex];

5. The conduct was sufficiently severe or pervasive that a

reasonable person in plaintiff’s position would find plaintiff’s work environment to be hostile or abusive.

 

6. That at the time the conduct occurred, Plaintiff believed that
the conduct made his work environment hostile or abusive.

 

If you find that Plaintiff did not prove by a preponderance of
the evidence each of the things required of him, then you must find for Defendant. If, on the other hand, you find that Plaintiff has proven each of these things, you must go on to consider whether Defendant has proven two things by a preponderance of the evidence:

 

1. Defendant exercised reasonable care to prevent and
correct any harassing conduct in the workplace.

 

2. Plaintiff unreasonably failed to take advantage of
opportunities provided by Defendant to prevent or correct harassment, or otherwise avoid harm.

 

If you find that Defendant has proved these two things by a
preponderance of the evidence, your verdict should be for Defendant. If you find that Defendant has not proved both of these things, your verdict should be for Plaintiff.Committee Comments

 

a. Scope: This instruction should be used when a
supervisor’s alleged harassment has not led to a tangible employment action. In such cases, the affirmative defense set out in the instruction becomes available to the defendant. See Hill v. American General Finance, Inc., 218 F.3d 639, 643 (7th Cir. 2000) (citing Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus. v. Ellerth, 524 U.S. 742 (1998)). In cases where the defendant does not raise the affirmative defense, the beginning of the instruction should be modified as follows:

 

Plaintiff says that he was [racially/sexually] harassed by
[Name of Alleged Supervisor]. To succeed in his claim against Defendant, Plaintiff must prove six things by a preponderance of the evidence.

 

The remainder of the instruction should remain the same,
with the instruction concluding after the jury receives the sixth element of the claim.

 

b. Supervisor Definition: See NLRB v. Kentucky River
Comm. Care, 532 U.S. 706, 713 (2001); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742 (1998); NLRB v. Yeshiva Univ . , 444 U.S. 672, 691 (1980); American Diversified Foods, Inc. v. NLRB, 640 F.2d 893, 894 (7th Cir. 1981).

 

c. Employer’s Vicarious Liability for Supervisor Conduct:
See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742 (1998); Rizzo v. Sheahan, 266 F.3d 705, 711 (7th Cir. 2001); Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806 (7th Cir. 2000); Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 212 F.3d 976 (7th Cir. 2000); Parkins v. Civil Contractors, Inc., 163 F.3d 1027, 1032 (7th Cir. 1998).

 

d. Hostile or Abusive Work Environment: In some cases,
a court may want to give the jury more guidance on what constitutes a hostile or abusive work environment. If so, the Committee suggests the following language:

 

To decide whether a reasonable person would find Plaintiff’s work environment hostile or abusive, you must look at all the circumstances. These circumstances may include the frequency of the conduct; its severity; its duration; whether it was physically threatening or humiliating, and whether it unreasonably interfered with the plaintiff’s work performance. No single factor is required in order to find a work environment hostile or abusive.

 

See Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998); Harris v. Forklift System, Inc., 510 U.S. 17, 23 (1993); Eighth Circuit Pattern Instructions § 5.42 Committee Comments.

 

e. Tangible Employment Action Disputed: In some cases,
the parties might dispute whether the supervisor’s alleged harassment led to a tangible employment action. In such situations, a court should modify the instruction by including the following language after listing the elements:

 

If Plaintiff did not prove each of these things by a preponderance of the evidence, you must find for Defendant. If you find that Plaintiff has proved all of these things by a preponderance of the evidence, you must consider whether Plaintiff can prove one additional fact: That [Name]’s conduct caused Plaintiff [adverse employment action].If so, your verdict must be for Plaintiff. If not, you must go on to consider whether Defendant has proven two things to you by a preponderance of the evidence.

 

The remainder of the instruction should remain the same.

 

f. Facts Not in Dispute: A court should modify the instruction
to account for situations where facts are not in dispute. For example, if the parties do not dispute that the alleged harasser is the plaintiff’s supervisor, a court does not need to give the first element of the instruction. Similarly, if the parties do not dispute that the defendant’s alleged conduct took place, a court should describe the conduct at the beginning of the instruction and then modify the instruction by replacing the elements 2-4 with the following two elements:

 

2. the conduct was unwelcome;3. Plaintiff was subjected to this conduct because he was [race/sex];

 

The remainder of the instruction should remain the same.

 

g. Plaintiff Complaint and Defendant Response: At the time
of the Committee’s work, the Seventh Circuit had not addressed the issue of whether a defendant can exculpate itself by taking immediate remedial measures after a plaintiff has complained about harassment. Other circuits are split. Compare Indest v. Freeman Decorating, Inc., 164 F.3d 258, 265 (5th Cir. 1999) (defense available because “plaintiff has received the benefit Title VII was meant to confer”) with Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1025-26 (10th Cir. 2002) (employer’s “prompt corrective action” is not alone sufficient to avoid employer liability for supervisor harassment under Title VII).

 

3. Eighth Circuit Model Jury Instructions 5.41, 5.42, 5.42A, and 5.43

 

a. 5.41 Sexual Harassment—Essential Elements (By
Supervisor with Tangible Employment Action)

 

Your verdict must be for plaintiff [and against defendant
_______] 1 on plaintiff’s claim of sexual harassment if all of the following elements have been proved by the [(greater weight) (preponderance)] 2 of the evidence:

 

First, plaintiff was subjected to (describe alleged conduct
giving rise to plaintiff’s claim) 3; and

 

Second, such conduct was unwelcome 4; andThird, such conduct was based on plaintiff’s [(sex) (gender)] 5; andFourth, defendant (specify action(s) taken with respect to
plaintiff) 6; and

 

Fifth, plaintiff’s [(rejection of) (failure to submit to)] 7 such
conduct was a motivating factor 8 in the decision to (specify action(s) taken with respect to plaintiff).

 

If any of the above elements has not been proved by the
[(greater weight) (preponderance)] of the evidence, your verdict must be for the defendant and you need not proceed further in considering this claim. 9

 

Committee CommentsThis instruction is designed for use in sexual harassment
cases where the plaintiff alleges that he or she suffered a tangible employment action resulting from a refusal to submit to a supervisor’s sexual demands. When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms or conditions of employment that is actionable under Title VII. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753 (1998). These cases (i.e., cases based on threats which are carried out) are “referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment.” Id. at 750.

 

The “Unwelcome” RequirementIn sexual harassment cases, the offending conduct must be
“unwelcome.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1986). In the Eighth Circuit, “conduct must be ‘unwelcome’ in the sense that the employee did not solicit or invite it, and the employee regarded the conduct as undesirable or offensive.” Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir. 1986); see also Burns v. McGregor Elec. Indus., Inc. [Burns I], 955 F.2d 559, 565 (8th Cir. 1992). In the typical quid pro quo case, where the plaintiff asserts a causal connection between a refusal to submit to sexual advances and a tangible employment action, the “unwelcome” requirement will be met if the jury finds that the plaintiff in fact refused to submit to a supervisor’s sexual advances. However, if the court allows a plaintiff to pursue a quid pro quo claim despite his or her submission to the supervisor’s sexual advances, the “unwelcome” element is likely to be disputed and must be included.

 

Conduct Based on SexIn general, the plaintiff must establish that harassment was
“based on sex” in order to prevail on a sexual harassment claim. See, e.g., Burns v. McGregor Elec. Indus., Inc. [Burns II], 989 F.2d 959, 964 (8th Cir. 1993). Because quid pro quo harassment involves behavior that is sexual in nature, there typically will not be a dispute as to whether the objectionable behavior was based on sex. As the Eighth Circuit has stated, “sexual behavior directed at a woman raises the inference that the harassment is based on her sex.” Burns I, 955 F.2d 559, 564 (8th Cir. 1992).

 

The Supreme Court has ruled that same-sex sexual
harassment is actionable under Title VII. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.75 (1998); accord Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463 (8th Cir. 1996); Quick v. Donaldson Co., 90 F.3d 1372 (8th Cir. 1996).

 

Employer LiabilityAs noted in the Introductory Comment, the Supreme Court
has recently held that an employer is “vicariously liable” when its supervisor’s discriminatory act results in a tangible employment action. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762 (1998) (“A tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer.”). No affirmative defense is available is such cases. Id. at 763.

 

Tangible Employment ActionAccording to the Supreme Court, a “tangible employment
action” for purposes of the vicarious liability issue means “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (citations omitted). In most cases, a tangible employment action “inflicts direct economic harm.” Id. at 762.

 

Notes on Use1. Use this phrase if there are multiple defendants.2. Select the bracketed language that corresponds to the
burden-of-proof instruction given.

 

3. The conduct or conditions forming the basis for the
plaintiff’s sexual harassment claim (e.g., requests for sexual relations by his or her supervisor) should be described here. Excessive detail is neither necessary nor desirable and may be interpreted by the appellate court as a comment on the evidence. See Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216 (8th Cir. 1997). It is appropriate to focus the jury’s attention on the essential or ultimate facts which plaintiff contends constitutes the conditions which make the environment hostile. Open-ended words such as “etc.” should be avoided. Commenting on the evidence, for example, by telling the jury that certain evidence should be considered with caution, or suggesting the judge does believe or does not believe, or is skeptical about some evidence is inadvisable. A brief listing of the essential facts or circumstances which plaintiff must prove is not normally deemed to be a comment on the evidence. Placing undue emphasis on a particular theory of plaintiff’s or defendant’s case should also be avoided. See Tyler v. Hot Springs Sch. Dist. No. 6, 827 F.2d 1227, 1231 (8th Cir. 1987).

 

4. If the court wants to define this term, the following should
be considered: “Conduct is ‘unwelcome’ if the plaintiff did not solicit or invite the conduct and regarded the conduct as undesirable or offensive.” This definition is taken from Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir. 1986).

 

5. Because quid pro quo harassment usually involves
conduct that is clearly sexual in nature, this element ordinarily may be omitted from the instruction.

 

6. Insert the appropriate language depending on the nature
of the case (e.g., “discharged,” “failed to hire,” “failed to promote,” or “demoted”). Where the plaintiff resigned but claims a “constructive discharge,” this instruction should be modified. See infra Model Instruction 5.93.

 

7. This instruction is designed for use in sexual harassment
cases where the plaintiff alleges that he or she suffered a tangible employment action resulting from a refusal to submit to a supervisor’s sexual demands. If the plaintiff submitted to the supervisor’s sexual advances, and the court allows the plaintiff to pursue such a claim under this instruction rather than requiring plaintiff to submit such a claim under Model Instruction 5.42, infra, this instruction must be modified or, alternatively, the trial court may use special interrogatories to build a record on all of the potentially dispositive issues. See, e.g., Karibian v. Columbia University, 14 F.3d 773, 778 (2d Cir.), cert. denied, 512 U.S. 1213 (1994).

 

8. The Committee recommends that the definition of
“motivating factor” set forth in Model Instruction 5.96, infra, be given.

 

9. Because this instruction is designed for use in cases in
which tangible employment action has been taken, plaintiff’s claim may be analyzed under the “motivating factor/same decision” format used in other Title VII cases. See infra Model Instruction 5.01A. For damages instructions and a verdict form, Model Instructions 5.02 through 5.05, infra, may be used.

 

b. 5.42 Sexual Harassment—Essential Elements (By
Supervisor With No Tangible Employment Action)

 

Your verdict must be for plaintiff [and against defendant
_______] 1 on plaintiff’s claim of sexual harassment if all of the following elements have been proved by the [(greater weight) (preponderance)] 2 of the evidence:

 

First, plaintiff was subjected to (describe alleged conduct or
conditions giving rise to plaintiff’s claim) 3; and

 

Second, such conduct was unwelcome 4; andThird, such conduct was based on plaintiff’s [(sex) (gender)]
5; and

 

Fourth, such conduct was sufficiently severe or pervasive
that a reasonable person in plaintiff’s position would find plaintiff’s work environment to be [(hostile) (abusive)] 6; and

 

Fifth, at the time such conduct occurred and as a result of
such conduct, plaintiff believed [(his) (her)] work environment to be [(hostile) (abusive)].

 

If any of the above elements has not been proved by the
[(greater weight) (preponderance)] of the evidence, [or if defendant is entitled to a verdict under Instruction ____,] 7 your verdict must be for the defendant and you need not proceed further in considering this claim.

 

Committee CommentsThis instruction is designed for use in sexual harassment
cases where the plaintiff did not suffer any “tangible” employment action such as discharge or demotion, but rather suffered “intangible” harm flowing from a supervisor’s sexual harassment that is “sufficiently severe or pervasive to create a hostile work environment.” See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,751 (1998).

 

It is impossible to compile an exhaustive list of the types of
conduct that may give rise to a hostile environment sexual harassment claim under Title VII. Some examples of this kind of conduct include: verbal abuse of a sexual nature; graphic verbal commentaries about an individual’s body, sexual prowess, or sexual deficiencies; sexually degrading or vulgar words to describe an individual; pinching, groping, and fondling; suggestive, insulting, or obscene comments or gestures; the display in the workplace of sexually suggestive objects, pictures, posters or cartoons; asking questions about sexual conduct; and unwelcome sexual advances. See Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316 (8th Cir. 1994); Hukkanen v. International Union of Operating Eng’rs Local No. 101, 3 F.3d 281 (8th Cir. 1993); Burns v. McGregor Elec. Indus., Inc. [Burns II], 989 F.2d 959 (8th Cir. 1993); Burns v. McGregor Elec. Indus., Inc. [Burns I], 955 F.2d 559 (8th Cir. 1992); Jones v. Wesco Invs., Inc., 846 F.2d 1154 (8th Cir. 1988); Hall v. Gus Constr. Co., 842 F.2d 1010 (8th Cir. 1988).

 

Conduct Based on Sex or GenderIn general, the plaintiff must establish that the alleged
offensive conduct was “based on sex.” Burns II, 989 F.2d at 964. Despite its apparent simplicity, this requirement raises a host of interesting issues. For example, in an historically male-dominated work environment, it may be commonplace to have sexually suggestive calendars on display and provocative banter among the male employees. While the continuation of this conduct may not be directed at a new female employee, it nevertheless may be actionable on the theory that sexual behavior at work raises an inference of discrimination against women. See Burns I, 955 F.2d at 564; see also Stacks v. Southwestern Bell, 27 F.3d 1316 (8th Cir. 1994) (sexual conduct directed by male employees toward women other than the plaintiff was considered part of a hostile work environment).

 

The Eighth Circuit also has indicated that conduct which is
not sexual in nature but is directed at a woman because of her gender can form the basis of a hostile environment claim. See, e.g., Gillming v. Simmons Indus., 91 F.3d 1168, 1171 (8th Cir. 1996) (jury instruction need not require a finding that acts were explicitly sexual in nature); Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th Cir. 1988) (calling a female employee “herpes” and urinating in her gas tank, although not conduct of an explicit sexual nature, was properly considered in determining if a hostile work environment existed); see also Stacks, 27 F.3d at 1326 (differential treatment based on gender in connection with disciplinary action supported a female employee’s hostile work environment claim); Shope v. Board of Sup’rs, 14 F.3d 596 (table), 1993 WL 525598 (4th Cir. 1993) (table) (rude, disparaging, and “almost physically abusive” conduct based on gender supported a hostile environment claim).

 

The Eighth Circuit has not directly addressed the issue of
whether vulgar or abusive conduct that is directed equally toward men and women can constitute a violation of Title VII. Because sexual harassment is a variety of sex discrimination, some courts have suggested that it is not a violation of Title VII if a manager is equally abusive to male and female employees. For example, in Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir. 1986), cert. denied, 481 U.S. 1041 (1987), abrogated on other grounds, 510 U.S. 17 (1993), the court suggested that sexual harassment of all employees by a bisexual supervisor would not violate Title VII. In a similar vein, the district court in Kopp v. Samaritan Health System, Inc., 13 F.3d 264 (8th Cir. 1993), granted the employer’s motion for summary judgment on the theory that the offending supervisor was abusive toward all employees. Although the Eighth Circuit reversed because the plaintiff had offered evidence that the abuse directed toward female employees was more frequent and more severe than the abuse directed at male employees, Kopp suggests that the “equal opportunity harassment” defense can present a question of fact for the jury. But see Chiapuzio v. BLT Operating Corp., 826 F. Supp. 1334 (D. Wyo. 1993) (holding that “equal opportunity harassment” of employees of both genders can violate Title VII).

 

The Supreme Court has ruled that same-sex sexual
harassment is actionable under Title VII. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998); accord Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463 (8th Cir. 1996); Quick v. Donaldson Co., 90 F.3d 1372 (8th Cir. 1996).

 

Hostile or Abusive EnvironmentIn order for hostile environment harassment to be
actionable, it must be “so ‘severe or pervasive’ as to ‘alter the conditions of [the victim’s] employment and create an abusive working environment.’“ Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) (quoting Meritor Savings Bank v. Vinson, 477 U.S. at 67 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982))); accord Parton v. GTE North, Inc., 971 F.2d 150, 154 (8th Cir. 1992); Burns v. McGregor Elec. Indus., Inc. [Burns I], 955 F.2d 559, 564 (8th Cir. 1992); Staton v. Maries County, 868 F.2d 996, 998 (8th Cir. 1989); Minteer v. Auger, 844 F.2d 569 (8th Cir. 1988). In Moylan v. Maries County, 792 F.2d 746 (8th Cir. 1986), the court explained:

 

The harassment must be “sufficiently pervasive so as to
alter the conditions of employment and create an abusive working environment.” Henson v. City of Dundee, 682 F.2d at 904. The plaintiff must show a practice or pattern of harassment against her or him; a single incident or isolated incidents generally will not be sufficient. The plaintiff must generally show that the harassment is sustained and non trivial.Id. at 749-50; see Faragher, 524 U.S. at 788 (“‘[S]imple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’“) (citations omitted).

 

“[I]n assessing the hostility of an environment, a court must
look to the totality of the circumstances.” Stacks, 27 F.3d at 1327 (citation omitted). In Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993), the Court held that a hostile environment claim may be actionable without a showing that the plaintiff suffered psychological injury. In determining whether an environment is hostile or abusive, the relevant factors include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Harris, 510 U.S. at 23. See also Faragher, 524 U.S. at 786 (reiterating relevant factors set forth in Harris); accord Phillips v. Taco Bell Corp., 156 F.3d 884, 889 (8th Cir. 1998) (citing Harris).

 

Objective and Subjective RequirementIn Harris, the Supreme Court explained that “a sexually
objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher, 524 U.S. at 787 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993) (“[I]f the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.”)); accord Rorie v. United Parcel Serv., Inc., 151 F.3d 757, 761 (8th Cir. 1998).

 

Employer LiabilityAs noted in the Introductory Comment, the Supreme Court
has recently held that an employer is “subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Unlike those cases in which the plaintiff suffers a tangible employment action, however, in cases where no tangible employment action has been taken by the supervisor, the employer may raise an affirmative defense to liability or damages. Id. See infra Model Instruction 5.42(A) & Committee Comments.

 

Notes on Use1. Use this phrase if there are multiple defendants.2. Select the bracketed language that corresponds to the
burden-of-proof instruction given.

 

3. The conduct or conditions forming the basis for the
plaintiff’s sexual harassment claim should be described here. Excessive detail is neither necessary nor desirable and may be interpreted by the appellate court as a comment on the evidence. See Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216 (8th Cir. 1997). It is appropriate to focus the jury’s attention on the essential or ultimate facts which plaintiff contends constitutes the conditions which make the environment hostile. Open-ended words such as “etc.” should be avoided. Commenting on the evidence, for example, by telling the jury that certain evidence should be considered with caution, or suggesting the judge does believe or does not believe, or is skeptical about some evidence is inadvisable. A brief listing of the essential facts or circumstances which plaintiff must prove is not normally deemed to be a comment on the evidence. Placing undue emphasis on a particular theory of plaintiff’s or defendant’s case should also be avoided. See Tyler v. Hot Springs Sch. Dist. No. 6, 827 F.2d 1227, 1231 (8th Cir. 1987).

 

4. The term “unwelcome” may be of such common usage
that it need not be defined. If the court wants to define this term, the following should be considered: “Conduct is ‘unwelcome’ if the plaintiff did not solicit or invite the conduct and regarded the conduct as undesirable or offensive.” This definition is taken from Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir. 1986).

 

5. As noted in the Committee Comments, there are a
number of subsidiary issues which can arise in connection with the requirement that actionable harassment must be “based on sex.” If the allegedly offensive conduct clearly was directed at the plaintiff because of his or her gender, it is not necessary to include this element. However, if there is a dispute as to whether the offensive conduct was discriminatory–for example, if the offending conduct may have been equally abusive to both men and women or if men and women participated equally in creating a “raunchy workplace”–it may be necessary to modify this element to properly frame the issue.

 

6. Select the word which best describes plaintiff’s theory.
Both words may be appropriate. This element sets forth the “objective test” for a hostile work environment. As discussed in the Committee Comments, it is the Committee’s position that the appropriate perspective is that of a “reasonable person.” In addition, it may be appropriate to include the factors set forth in Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993), and reiterated in Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998), to aid in determining whether a plaintiff’s work environment was hostile or abusive. For example:

 

In determining whether a reasonable person in the
plaintiff’s circumstances would find the plaintiff’s work environment to be hostile or abusive, you must look at all the circumstances. The circumstances may include the frequency of the conduct complained of; its severity; whether it was physically threatening or humiliating, or merely offensive; whether it unreasonably interfered with the plaintiff’s work performance; and the effect on plaintiff’s psychological well-being. No single factor is required in order to find a work environment hostile or abusive.

 

7. Because this instruction is designed for cases in which
no tangible employment action is taken, the defendant may defend against liability or damages by proving an affirmative defense “of reasonable oversight and of the employee’s unreasonable failure to take advantage of corrective opportunities.” Nichols v. American Nat’l Ins. Co., 154 F.3d 875, 887 (8th Cir. 1998) (citing Faragher, 524 U.S. at 807; Burlington Indus., 524 U.S. at 763). The bracketed language should be used when the defendant is submitting the affirmative defense. See infra Model Instruction 5.42(A).

 

c. 5.42(A) Affirmative Defense (For Use in Cases With
No Tangible Employment Action

 

Your verdict must be for defendant on plaintiff’s claim of
sexual harassment if it has been proved by the [greater weight) (preponderance)] 1 of the evidence that (a) defendant exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) that plaintiff unreasonably failed to take advantage of (specify the preventive or corrective opportunities provided by defendant of which plaintiff allegedly failed to take advantage or how plaintiff allegedly failed to avoid harm otherwise). 2
Committee CommentsRecently, the United States Supreme Court held that “[a]n
employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by [the employee’s] supervisor.” Rorie v. United Parcel Serv., Inc., 151 F.3d 757, 762 (8th Cir. 1998) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 745 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 777 (1998)). When “no tangible employment action, such as discharge, demotion, or undesirable reassignment” is taken, however, an employer may defend against liability or damages “by proving an affirmative defense of reasonable oversight and of the employee’s unreasonable failure to take advantage of corrective opportunities.” Nichols v. American Nat’l Ins. Co., 154 F.3d 875, 887 (8th Cir. 1998) (citing Faragher, 524 U.S. at 807; Burlington Indus., 524 U.S. at 763)); accord Phillips v. Taco Bell Corp., 156 F.3d 884, 888 (8th Cir. 1998) (citing same); Newton v. Cadwell Laboratories, 156 F.3d 880, 883 (8th Cir. 1998) (citing same). The language of the affirmative defense is taken verbatim from the Supreme Court’s decisions in Burlington Industries and Faragher.

 

Notes on Use1. Select the bracketed language that corresponds to the
burden-of-proof instruction given.

 

2. According to the Supreme Court, a defendant asserting
this affirmative defense must prove not only that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, but also that “plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by defendant or to avoid harm otherwise.” Faragher, 524 U.S. at 807; Burlington Indus., 524 U.S. at 763. For purposes of instructing the jury, however, the Committee recommends that the specific preventive or corrective opportunities of which plaintiff allegedly failed to take advantage or the particular manner in which plaintiff allegedly failed to avoid harm be identified.

 

d. 5.43 Sexual Harassment—Essential Elements (By
Nonsupervisor With No Tangible Employment Action)

 

Your verdict must be for plaintiff [and against defendant
_______] 1 on plaintiff’s claim of sexual harassment if all of the following elements have been proved by the [(greater weight) (preponderance)] 2 of the evidence:

 

First, plaintiff was subjected to (describe alleged conduct or
conditions giving rise to plaintiff’s claim) 3; and

 

Second, such conduct was unwelcome 4; andThird, such conduct was based on plaintiff’s [(sex) (gender)]
5; and

 

Fourth, such conduct was sufficiently severe or pervasive
that a reasonable person in plaintiff’s position would find plaintiff’s work environment to be [(hostile) (abusive)] 6; and

 

Fifth, at the time such conduct occurred and as a result
of such conduct, plaintiff believed [(his) (her)] work environment to be [(hostile) (abusive)]; and

 

Sixth, defendant knew or should have known of the (describe
alleged conduct or conditions giving rise to plaintiff’s claim) 7; and

 

Seventh, defendant failed to take prompt and appropriate
corrective action to end the harassment. 8

 

If any of the above elements has not been proved by the
[(greater weight) (preponderance)] of the evidence, your verdict must be for the defendant and you need not proceed further in considering this claim. 9

 

Committee CommentsThis instruction is designed for use in cases where the
plaintiff did not suffer any tangible employment action, but claims that he or she was subjected to sexual harassment by non-supervisors (as opposed to supervisory personnel) sufficiently severe or pervasive to create a hostile working environment. In such cases (i.e., cases not involving vicarious liability), “[e]mployees have some obligation to inform their employers, either directly or otherwise, of behavior that they find objectionable before employer can be held responsible for failing to correct that behavior, at least ordinarily.” Whitmore v. O’Connor Management, Inc., 156 F.3d 796, 800 (8th Cir. 1998) (decided after the Supreme Court’s opinions in Burlington Industries and Faragher).

 

Notes on Use1. Use this phrase if there are multiple defendants.2. Select the bracketed language that corresponds to the
burden-of-proof instruction given.

 

3. The conduct or conditions forming the basis for the
plaintiff’s sexual harassment claim should be described here. Excessive detail is neither necessary nor desirable and may be interpreted by the appellate court as a comment on the evidence. See Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1222 (8th Cir. 1997). It is appropriate to focus the jury’s attention on the essential or ultimate facts which plaintiff contends constitutes the conditions which make the environment hostile. Open-ended words such as “etc.” should be avoided. Commenting on the evidence, for example, by telling the jury that certain evidence should be considered with caution, or suggesting the judge does believe or does not believe, or is skeptical about some evidence is inadvisable. A brief listing of the essential facts or circumstances which plaintiff must prove is not normally deemed to be a comment on the evidence. Placing undue emphasis on a particular theory of plaintiff’s or defendant’s case should also be avoided. See Tyler v. Hot Springs Sch. Dist. No. 6, 827 F.2d 1227, 1231 (8th Cir. 1987).

 

4. The term “unwelcome” may be of such common usage
that it need not be defined. If the court wants to define this term, the following should be considered: “[Conduct is ‘unwelcome’] if the employee did not solicit or invite it and the employee regarded the conduct as undesirable or offensive.” This definition is taken from Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir. 1986).

 

5. As noted in the Committee Comments, there are a
number of subsidiary issues which can arise in connection with the requirement that actionable harassment must be “based on sex.” If the allegedly offensive conduct clearly was directed at the plaintiff because of his or her gender, it is not necessary to include this element. However, if there is a dispute as to whether the offensive conduct was discriminatory–for example, if the offending conduct may have been equally abusive to both men and women or if men and women participated equally in creating a “raunchy workplace”–it may be necessary to modify this element to properly frame the issue.

 

6. Select the word which best describes plaintiff’s theory.
Both words may be appropriate. This element sets forth the “objective test” for a hostile work environment. As discussed in the Committee Comments, it is the Committee’s position that the appropriate perspective is that of a “reasonable person.” In addition, it may be appropriate to include the factors set forth in Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993), and reiterated in Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998), to aid in determining whether a plaintiff’s work environment was hostile or abusive. For example:

 

In determining whether a reasonable person in the
plaintiff’s circumstances would find the plaintiff’s work environment to be hostile or abusive, you must look at all the circumstances. The circumstances may include the frequency of the conduct complained of; its severity; whether it was physically threatening or humiliating, or merely offensive; whether it unreasonably interfered with the plaintiff’s work performance; and the effect on plaintiff’s psychological well-being. No single factor is required in order to find a work environment hostile or abusive.

 

7. As noted in the Committee Comments, there are
generally two requirements for establishing employer liability in sexual harassment cases where the plaintiff claims harassment by his or her coworkers rather than by supervisory personnel: (1) the plaintiff must show that the employer knew or should have known of the harassment; and (2) the plaintiff must show that the employer failed to take appropriate action to end the harassment. This element sets forth the first half of the test. As a practical matter, it is unlikely that the defendant will seriously contest both issues: if the employer claims it never knew of the harassment, the question of whether its response was appropriate would be moot; conversely, if the employer’s primary defense is that it took appropriate remedial action, the “knew or should have known” element may be moot.

 

8. As discussed in the Introductory Comment, the Supreme
Court’s recent opinions with respect to employer liability in sexual harassment cases address only those situations in which a supervisor (as opposed to a non-supervisor) sexually harasses a subordinate. In cases in which the plaintiff alleges sexual harassment by a non-supervisor, the issue of whether courts will leave the burden on plaintiff to prove that the defendant failed to take prompt and appropriate corrective action or whether courts will place the burden on the defendant to prove an affirmative defense that it took prompt and appropriate corrective action as in Faragher and Burlington Industries is an open question. See, e.g., Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1366 (11th Cir. 1999) (Barkett, concurring).

 

9. Because this instruction is designed for use in cases in
which no tangible employment action has been taken, plaintiff’s claim should not be analyzed under the “motivating factor/same decision” format used in other Title VII cases. See Stacks v. Southwestern Bell, 27 F.3d 1316 (8th Cir. 1994). For damages instructions and a verdict form, Model Instructions 5.02 through 5.05, infra, should be used in a modified format. For a sample constructive discharge instruction, see infra Model Instruction 5.93.
4. Ninth Circuit Model Instructions 12.2, 12.2A, 12.2B, 12.2C, 12.4B

 

a. 12.2 Hostile Work Environment—Harassment (Comment)

 

Comment The Supreme Court addressed the law of harassment
claims under Title VII in two companion cases, Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) [collectively, Ellerth/Faragher]. Although those cases relate to sexual harassment, the Committee does not discern any conceptual difference between harassment because of sex and harassment because of race or any other protected status. Accordingly, the following instructions are applicable to harassment based upon race, color, sex, religion and national origin.

 

Ellerth/Faragher clarified the standards governing an
employer’s liability for harassment. Essentially, when an employee suffers a tangible employment action resulting from a direct supervisor’s harassment, the employer’s liability is established by proof of the harassment and a resulting tangible employment action. See Faragher, 524 U.S. at 807-08. No affirmative defense is available to the employer in those cases. In cases where no tangible employment action has been taken, the employer may interpose an affirmative defense to defeat liability by proving (a) that the employer exercised reasonable care to prevent and correct promptly any discriminatory conduct, and (b) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. Id.; Ellerth, 524 U.S. at 764-65; see also Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1166-67 (9th Cir.2003); Swinton v. Potomac Corporation, 270 F.3d 794, 803 (9th Cir.2001). (See Instruction 12.2B) In Pennsylvania State Police v. Suders, 124 S. Ct. 2342 (2004), the Supreme Court applied the framework of Ellerth/Faragher to a case of constructive discharge due to a hostile work environment. In such a case, the Ellerth/Faragher affirmative defense is available to the employer, unless an official act, i.e. a tangible employment action, of the employer precipitated the employee’s decision to resign. Id. at 2355.

 

If, however, harassment is committed by a co-worker or a
non-direct supervisor of the plaintiff, the employer is liable only under a negligence theory. In this situation, the employer may not invoke the Ellerth/Faragher affirmative defense. See Swinton, 270 F.3d at 803-04 (noting that the principle embodied in the affirmative defense is contained in the requirements for a prima facie case based on negligence). (See Instruction 12.2C)

 

In Holly D., the Ninth Circuit explained how pre-
Ellerth/Faragher cases analyzing “quid pro quo” harassment, or “sex for jobs (or job benefits),” are consistent with the Ellerth/Faragher analysis. See Holly D., 339 F.3d at 1168-70. Inasmuch as sexual harassment claims, including those referred to as quid pro quo claims, are now analyzed under the Ellerth/Faragher framework, the Committee has removed former Instructions 13.6 and 13.7.

 

b. 12.2A Hostile Work Environment—Harassment
Because of Protected Characteristics—Elements

 

The plaintiff seeks damages against the defendant for a
[[racially] [sexually] [other Title VII protected characteristic]] hostile work environment while employed by the defendant. In order to establish a [[racially] [sexually] [ other Title VII protected characteristic]] hostile work environment, the plaintiff must prove each of the following elements by a preponderance of the evidence:

 

1. the plaintiff was subjected to [slurs, insults, jokes or
other verbal comments or physical contact or intimidation of a racial nature], [sexual advances, requests for sexual conduct, or other verbal or physical conduct of a sexual nature], or [ conduct affecting other Title VII protected characteristics];

 

2. the conduct was unwelcome;3. the conduct was sufficiently severe or pervasive to alter
the conditions of the plaintiff’s employment and create a [[racially] [sexually] [ other Title VII protected characteristic]] abusive or hostile work environment;

 

4. the plaintiff perceived the working environment to be
abusive or hostile; and

 

5. a reasonable [woman] [man] in the plaintiff’s
circumstances would consider the working environment to be abusive or hostile.

 

Whether the environment constituted a [[racially] [sexually]
[ other Title VII protected characteristic]] hostile work environment is determined by looking at the totality of the circumstances, including the frequency of the harassing conduct, the severity of the conduct, whether the conduct was physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interfered with an employee’s work performance.Comment

 

The elements of this instruction are derived from Fuller v.
City of Oakland, California, 47 F.3d 1522, 1527 (9th Cir.1995). The language in the instruction regarding the factors used to determine whether a working environment was sufficiently hostile or abusive is derived from Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).

 

This instruction should be given in conjunction with other
appropriate instructions, including 12.2B (Hostile Work Environment Caused by Supervisor—Claim Based Upon Vicarious Liability—Tangible Employment Action—Affirmative Defense); 12.2C (Hostile Work Environment Caused by Non-Immediate Supervisor or by Co-Worker—Claim Based On Negligence; and, if necessary, 12.4B (Tangible Employment Action Defined).

 

“A plaintiff must show that the work environment was both
subjectively and objectively hostile.” McGinest v. GTE Service Corp., 360 F.3d 1103, 1113 (9th Cir.2004); see also Fuller, 47 F.3d at 1527 (citing Harris, 510 U.S. at 21-22). For the objective element, the Ninth Circuit has adopted the “reasonable victim” standard. Ellison v. Brady, 924 F.2d 872, 878-80 (9th Cir.1991). Therefore, if the plaintiff/victim is a woman, element five of the instruction should state “reasonable woman,” and if the plaintiff/victim is a man, “reasonable man.” Ellison, 924 F.2d at 879, n.11.

 

c. 12.2B Hostile Work Environment Caused by
Supervisor—Claim Based Upon Vicarious Liability—
Tangible Employment Action—Affirmative Defense

 

An employer may be liable when a supervisor with
immediate or successively higher authority over the employee creates a [[racially] [sexually] [other Title VII protected characteristic]] hostile work environment for that employee. The plaintiff claims that [he] [she] was subjected to a [[racially] [sexually] [other Title VII protected characteristic]] hostile work environment by _____________, and that _____________ was [his] [her] [immediate supervisor] [a person with successively higher authority over plaintiff].

 

The defendant denies the plaintiff’s claim. The plaintiff must
prove [his] [her] claim by a preponderance of the evidence.[If Ellerth/Faragher affirmative defense applies, add the following:]

 

In addition to denying the plaintiff’s claim, the defendant has
asserted an affirmative defense. Before you consider this affirmative defense, you must first decide whether plaintiff has proved by a preponderance of the evidence that [he] [she] suffered a tangible employment action as a result of harassment by the supervisor.

 

If plaintiff has proved that [he][she] suffered a tangible
employment action as a result of harassment by the supervisor, you must not consider the affirmative defense.

 

If plaintiff has not proved that [he][she] suffered a tangible
employment action, then you must decide whether the defendant has proved by a preponderance of the evidence each of the following elements:

 

1. the defendant exercised reasonable care to prevent and
promptly correct the [[racially][sexually][other Title VII protected characteristic]] harassing behavior, and

 

2. the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or unreasonably failed to otherwise avoid harm.

 

If the defendant proves these elements, the plaintiff is not
entitled to prevail on this claim.Comment

 

See Introductory Comment to this chapter. This instruction
should be given in conjunction with Instruction 12.2A (Hostile Work Environment—Harassment Because of Protected Characteristics—Elements) and, if applicable, Instruction 12.4B (Tangible Employment Action Defined).

 

This instruction is based upon Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 764-65 (1998), Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998) and Swinton v. Potomac Corporation, 270 F.3d 794, 802 (9th Cir.2001), cert. denied, 535 U.S. 1018 (2002).

 

This instruction addresses harassment by a supervisor with
immediate or successively higher authority over the plaintiff. Use the first two paragraphs if no Ellerth/Faragher affirmative defense is applicable. Use the entire instruction if an Ellerth/Faragher defense is to be considered by the jury.

 

When harassment is by the plaintiff’s immediate or
successively higher supervisor, an employer is vicariously liable, subject to a potential affirmative defense. Faragher, 524 U.S. at 780; Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 875 (9th Cir. 2001). For vicarious liability to attach it is not sufficient that the harasser be employed in a supervisory capacity; he must have been the plaintiff’s immediate or successively higher supervisor. Swinton, 270 F.3d at 805, citing Faragher, 514 U.S. at 806. An employee who contends that he or she submitted to a supervisor’s threat to condition continued employment upon participation in unwanted sexual activity alleges a tangible employment action, which, if proved, deprives the employer of an Ellerth/Faragher defense. Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1173 (9th Cir.2003) (affirming summary judgment for the employer due to insufficient evidence of any such condition imposed by plantiff’s supervisor). See Pennsylvania State Police v. Suders, 124 S. Ct. 2342, 2349 (2004) for discussion of tangible employment action.

 

The adequacy of an employer’s anti-harassment policy may
depend on the scope of its dissemination and the relationship between the person designated to receive employee complaints and the alleged harasser. See, e.g., Faragher, 524 U.S. at 808 (policy held ineffective where (1) the policy was not widely disseminated to all branches of the municipal employer and (2) the policy did not include any mechanism by which an employee could bypass the harassing supervisor when lodging a complaint).

 

“While proof that an employer had promulgated an anti-
harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense.” Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807.

 

Although proof that the plaintiff failed to use reasonable care
in avoiding harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the defendant, a demonstration of such failure will normally suffice to satisfy this prong. See Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807–08.

 

If the harasser is not plaintiff’s immediate or successively
higher supervisor, an employer’s liability can only be based on negligence. The Ellerth/Faragher affirmative defense is not applicable if the claim is based on negligence. Use instruction 12.2C for a claim based on negligence.

 

d. 12.2C Hostile Work Environment Caused by Non-
Immediate Supervisor or by Co-Worker—Claim Based
on Negligence

 

The plaintiff seeks damages from the defendant for a hostile
work environment caused by [[sexual] [racial] [other Title VII protected characteristic]] harassment. The plaintiff has the burden of proving both of the following elements by a preponderance of the evidence:
1. the plaintiff was subjected to a [[sexually] [racially] [other
Title VII protected characteristic]] hostile work environment by a [non-immediate supervisor] [co­worker]; and

 

2. the defendant or a member of defendant’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 upon 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 has proved both of the elements
on which the plaintiff has the burden of proof, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove either of these elements, your verdict should be for the defendant.Comment

 

See Introductory Comment to this chapter. See also
Swinton v. Potomac Corporation, 270 F.3d 794, 803-05 (9th Cir.2001), cert. denied, 535 U.S. 1018 (2002). Use this instruction when the claim against the employer is based on negligence and involves harassment by another co-worker or a supervisor who is not plaintiff’s direct (immediate or successively higher) supervisor.

 

Use this instruction in conjunction with Instruction 12.2A
(Hostile Work Environment—Harassment Because of Protected Characteristics —Elements).

 

Under a negligence theory, an employer is liable if the
employer (or its “management”) knew or should have known of the harassing conduct and failed to take reasonably prompt corrective action to end the harassment. Swinton, 270 F.3d at 803-04. There are two categories of employees who constitute “management” for purposes of a negligence claim. Id. at 804. The first category is a member of management who possesses substantial authority and discretion to make decisions over the plaintiff’s or the harasser’s employment, such as “authority to counsel, investigate, suspend or fire the accused harasser, or to change the conditions of the harassee’s employment.” Id. The second category of employees who qualify as management consists of any supervisor who lacks this authority but nonetheless “has an official or strong de facto duty to act as a conduit to management for complaints about work conditions.” Id. at 805 (citations omitted).

 

It should be noted, however, that neither Swinton nor any
of the cases relied upon by Swinton provide a definition of a supervisor or other employee with “an official or strong de facto duty to act as a conduit to management for complaints about work conditions.” See Swinton, 270 F.3d at 804-805. To aid jury understanding, the Committee has modified the Swinton language of “de facto duty to act as a conduit to management . . . .” Id. at 805, to “duty in fact to communicate to management . . . .”

 

The two elements of this instruction are based upon
Burrell v. Star Nursery, Inc., 170 F.3d 951, 955 (9th Cir.1999) and Mockler v. Multnomah County, 140 F.3d 808, 812 (9th Cir.1998). The text of the instruction addressing remedial action is based upon Mockler, 140 F.3d at 813 (citing Ellison v. Brady, 924 F.2d 872, 882 (9th Cir.1991)).

 

The burden is on the plaintiff to “show that the employer
knew or should have known of the harassment, and took no effectual action to correct the situation.” Mockler, 140 F.3d at 812 (citations omitted). “This showing can . . . be rebutted by the employer directly, or by pointing to prompt remedial action reasonably calculated to end the harassment.” Id.

 

In determining whether an employer’s response to the
harassment is sufficient to absolve it from liability, “the fact that [the] harassment stops is only a test for measuring the efficacy of a remedy, not a way of excusing the obligation to remedy.” Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir.1995). “Once an employer knows or should know of harassment, a remedial obligation kicks in.” Id. Therefore, “if 1) no remedy is undertaken, or 2) the remedy attempted is ineffectual, liability will attach.” Id. at 1528–29.

 

For purposes of proving that the defendant “knew or
reasonably should have known of the harassment,” it is appropriate to impute this knowledge to a defendant employer if a management-level employee of the employer defendant knew or reasonably should have known that harassment was occurring. Swinton, 270 F.3d at 804.

 

e. 12.4B Tangible Employment Action Defined

 

Tangible employment actions are the means by which a
supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment action requires an official act of the enterprise, a company act. A tangible employment action consists of a significant change in employment status such as [firing] [failing to promote] [reassignment] [a significant change in responsibilities] [undesirable reassignment] or [a significant change in benefits]. [A tangible employment action occurs when a superior obtains sexual favors from an employee by conditioning continued employment on participation in unwelcome acts.]Comment

 

This instruction should be given in conjunction with
Instruction 12.2B (Hostile Work Environment Caused by Supervisor —Claim Based Upon Vicarious Liability —Tangible Employment Action—Affirmative Defense).

 

The meaning of the term “tangible employment action” is
discussed in Pennsylvania State Police v. Suders, 124 S. Ct. 2342 (2004). The Supreme Court granted certiorari in Suders in order to resolve a split in the circuits as to whether a constructive discharge brought about by supervisor harassment constitutes a tangible employment action and bars the affirmative defense set out in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998). Id. at 2350.

 

The Suders Court rejected the Third Circuit’s holding that “a
constructive discharge, when proved, constitutes a tangible employment action.” Id. (quoting Suders v. Easton, 325 F.3d 432, 447 (3d Cir.2003)). The Court concluded that a constructive discharge, in itself, does not constitute a tangible employment action that bars the Ellerth/Faragher affirmative defense. That defense “is available to the employer whose supervisors are charged with harassment,” and is barred only if a “tangible employment action” carried out under a supervisor’s official authority was part of the conduct leading to the constructive discharge. Id. at 2351.

 

In the context of quid pro quo sexual harassment, the Ninth
Circuit recently held that a “tangible employment action” occurs when a supervisor who abuses his supervisorial authority succeeds in coercing an employee to engage in sexual acts by threats of discharge or other material job-related consequence, or fails in his efforts to coerce the employee but then actually discharges her on account of her refusal to submit to his demands. Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1169 (9th Cir.2003). In such situations, the employer may be held vicariously liable for the direct supervisor’s unlawful conduct and may not take advantage of the Ellerth/Faragher affirmative defense. Id. However, an “unfulfilled, or inchoate, quid pro quo threat by a supervisor is not enough” to constitute a tangible employment action. Id. at 1170. Rather, the threat must culminate in the actual coercion of a sexual act or some other “form of sufficiently concrete employment action” on account of the employee’s refusal to submit. See id.

 

5. Eleventh Circuit Model Instruction 1.2.2

 

In this case the Plaintiff makes a claim under the Federal
Civil Rights statutes that prohibit employers from discriminating against their employees in the terms and conditions of their employment because of the employee’s [race] [sex or gender].

 

More specifically, the Plaintiff claims that [he] [she] was
subjected to a hostile or abusive work environment because of [racial] [sexual] harassment which is a form of prohibited employment discrimination.

 

In order to prevail on this claim, the Plaintiff must prove each
of the following facts by a preponderance of the evidence:

 

First: That the Plaintiff was subjected to a hostile or abusive
work environment, as hereafter defined, because of [his] [her] [race] [sex or gender];

 

Second: That such hostile or abusive work environment
was [created] [permitted] by a supervisor with immediate or successively higher authority over the Plaintiff; and

 

Third: That the Plaintiff suffered damages as a proximate or
legal result of such hostile or abusive work environment.

 

[In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues.]

 

[In the verdict form that I will explain in a moment, you will be
asked to answer a series of questions concerning each of these factual issues.]

 

A work environment is hostile or abusive because of [racial]
[sexual] harassment only if (1) the Plaintiff was subjected to [racially] [sexually] offensive acts or statements; (2) such acts or statements were unwelcome and had not been invited or solicited, directly or indirectly, by the Plaintiff’s own acts or statements; (3) such acts or statements resulted in a work environment that was so permeated with discriminatory intimidation, ridicule or insult of sufficient severity or pervasiveness that it materially altered the conditions of the Plaintiff’s employment; (4) a reasonable person, as distinguished from someone who is unduly sensitive, would have found the workplace to be hostile or abusive; and (5) the Plaintiff personally believed the workplace environment to be hostile or abusive.

 

Whether a workplace environment is “hostile” or “abusive”
can be determined only by looking at all the circumstances including the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating; and whether it unreasonably interfered with the employee’s work performance. The effect on the employee’s mental and emotional well being is also relevant to determining whether the Plaintiff actually found the workplace environment to be hostile or abusive; but while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.

 

Conduct that only amounts to ordinary socializing in the
workplace such as occasional horseplay, sexual flirtation, sporadic or occasional use of abusive language, gender related jokes, and occasional teasing, does not constitute an abusive or hostile environment. Only extreme conduct amounting to a material change in the terms and conditions of employment is actionable.

 

When a hostile or abusive work environment is created by
the conduct of a supervisor with immediate or successively higher authority over the Plaintiff, the Defendant employer is responsible under the law for such behavior and the resulting work environment.

 

[When a hostile or abusive work environment is created
and carried on by nonsupervisory fellow workers of the Plaintiff, the Defendant, as the Plaintiff’s employer, will be responsible or liable for permitting such behavior only if the Plaintiff proves by a preponderance of the evidence that the Plaintiff’s supervisor or successively higher authority knew (that is, had actual knowledge), or should have known (that is, had constructive knowledge), of the hostile or abusive work environment and permitted it to continue by failing to take remedial action.

 

To find that a supervisor had constructive knowledge of a
hostile or abusive work environment—that is, that the supervisor should have known of such environment – – the Plaintiff must prove that the hostile or abusive environment was so pervasive and so open and obvious that any reasonable person in the supervisor’s position would have known that the harassment was occurring. Even though you may have already determined that the Plaintiff was in fact exposed to a hostile or abusive work environment, that alone is not determinative of the issue of the supervisor’s knowledge; rather, you must find that the discriminatory harassment to which the Plaintiff was exposed was so pervasive and unconcealed that knowledge on the part of the supervisor may be inferred.]

 

Finally, in order for the Plaintiff to recover damages for
having been exposed to a discriminatorily hostile or abusive work environment because of [race] [sex], the Plaintiff must prove that such damages were proximately or legally caused by the unlawful discrimination. For damages to be the proximate or legal result of unlawful conduct, it must be shown that, except for such conduct, the damages would not have occurred.

 

If you find that the Plaintiff has proved each of the things [he]
[she] must prove in support of [his] [her] claim, you will then consider the Defendant’s affirmative defense to that claim.

 

In order to prevail on the affirmative defense, the Defendant
must prove each of the following facts by a preponderance of the evidence:FIRST OPTION

 

[First: That the Defendant exercised reasonable care to
prevent and correct promptly, any sexually harassing behavior in the workplace; and

 

Second: That the Plaintiff unreasonably failed to take
advantage of the preventive or corrective opportunities provided by the Defendant to avoid or correct the harm [or otherwise failed to exercise reasonable care to avoid harm].]SECOND OPTION

 

[First: That the Defendant exercised reasonable care to
prevent any sexually harassing behavior in the workplace; and

 

Second: That the Defendant took reasonable and prompt corrective action after the Plaintiff took advantage of the preventive or corrective opportunities provided by Defendant].]THIRD OPTION

 

First: That the Defendant exercised reasonable care to
prevent any sexually harassing behavior in the workplace; and

 

Second: That the Plaintiff unreasonably failed to take
advantage of the preventive or corrective opportunities provided by the Defendant to avoid or correct the harm [or otherwise failed to exercise reasonable care to avoid harm] or that, if the Plaintiff did take advantage of preventive or corrective opportunities, the Defendant responded by taking reasonable and prompt corrective action].]

 

In the verdict form that I will explain in a moment, you will be
asked to answer a series of questions concerning each of these factual issues.

 

[Ordinarily, proof of the following facts will suffice to
establish the exercise of “reasonable care” by the employer: (a) that the employer had promulgated an explicit policy against sexual harassment in the workplace; (b) that such policy was fully communicated to its employees; and (c) that such policy provided a reasonable avenue for the Plaintiff to make a complaint to higher management. Conversely, proof that an employee did not follow a complaint procedure provided by the employer will ordinarily suffice to establish that the employee “unreasonably failed” to take advantage of a corrective opportunity.]

 

If you find that the Plaintiff has proved [his] [her] claim [and
that the Defendant has not proved its affirmative defense], you must then determine the amount of damages the Plaintiff has sustained.SPECIAL INTERROGATORIES TO THE JURY

 

Do you find from a preponderance of the evidence:1. That the Plaintiff was subjected to a hostile or abusive
work environment because of [his] [her] [race] [sex or gender]?
Answer Yes or No

 

2. That such hostile or abusive work environment was
[created] [permitted] by a supervisor with immediate or successively higher authority over the Plaintiff?
Answer Yes or No

 

3. That the Plaintiff suffered damages as a proximate or
legal result of such hostile or abusive work environment?
Answer Yes or No

 

[Note: If you answered No to any one of the preceding three
questions, you need not answer the remaining questions.]OPTION NO. 1

 

[4. That the Defendant exercised reasonable care to
prevent and correct promptly any sexually harassing behavior in the workplace?
Answer Yes or No

 

5. That the Plaintiff unreasonably failed to take advantage
of any preventive or corrective opportunities provided by the Defendant to avoid or correct the harm?
Answer Yes or No ]

 

OPTION NO. 2

 

[4. That the Defendant exercised reasonable care to prevent
any sexually harassing behavior in the workplace?
Answer Yes or No

 

5. That the Defendant took reasonable and prompt
corrective action after the Plaintiff took advantage of the preventive or corrective opportunities provided by the Defendant?
Answer Yes or No ]

 

OPTION NO. 3

 

[4. That the Defendant exercised reasonable care to prevent
any sexually harassing behavior in the workplace?
Answer Yes or No

 

5. That – -(a) The Plaintiff unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the Defendant to avoid or correct the harm?
Answer Yes or No

 

OR(b) The Plaintiff took advantage of the preventive or corrective
opportunities provided by the Defendant and the Defendant then responded by taking reasonable and prompt corrective action?
Answer Yes or No ]

 

G. Compensatory Damages for Emotional Distress

 

1. Questions to Be Considered

 

a. Confusion

 

Seventh Circuit Draft Model Jury Instruction 3.09 states in its first

sentence that plaintiff should be awarded damages if he or she succeeds on any of the claims, but states in its last sentence that plaintiff must be denied damages if he or she does not succeed on all claims.

b. Should There Be a “No Exact Standard” Instruction
for Pain-and-Suffering Damages?

 

Seventh Circuit Model Instruction 3.10 includes in bracket 1 a

“no exact standard” statement. Eleventh Circuit Model Instruction 1.1.1 states that no evidence of intangible values is needed.

By contrast, some of the other Circuits’ pattern instructions

could lead a jury to think plaintiff must prove a scale and where he or she fits on the scale. The inclusion of a statements like the Seventh and Eleventh Circuits’ would help jurors accomplish their task without misunderstandings.

c. Plain Language Awards

 

Seventh Circuit Model Instruction 3.10 and Eleventh Circuit Model

Instruction 1.1.1 are indeed models.

However, the Seventh Circuit takes the edge in conciseness.

“Full, just and reasonable” in the Eleventh are captured by “fairly” in the Seventh.

d. Damages for Litigation-Related Stress

 

The stress and anxiety of the lawsuit cannot usually be

considered in assessing damages. This is certainly true for cases conducted in an ordinary manner. What of cases conducted in an extraordinary manner, however? Some defense counsel deliberately seek to distress harassment plaintiffs, or engage in conduct in violation of court rules or orders that will foreseeably have that effect.

B.K.B. v. Maui Police Department, 276 F.3d 1091, 1106–09,

87 FEP Cases 1306 (9th Cir. 2002), affirmed the sanction of $5,000 in emotional-distress damages for the plaintiff because of the emotional stress caused by the humiliation of hearing previously-barred evidence come before the jury in violation of FRE 412. Kimzey v. Wal-Mart Stores, Inc. , 107 F.3d 568, 73 FEP Cases 87 (8th Cir . 1997), reduced the punitive damages award to $350,000, but seems to have accepted that punitive damages may be based in part on defense counsel’s unprofessional trial conduct degrading the plaintiff.

2. Fifth Circuit Model Instructions 15.1, 15.2, and 15.3

 

a. 15.1 Consider Damages Only if Necessary

 

If the plaintiff has proven his claim against the defendant
by a preponderance of the evidence, you must determine the damages to which the plaintiff is entitled. You should not interpret the fact that I have given instructions about the plaintiff’s damages as an indication in any way that I believe that the plaintiff should, or should not, win this case. It is your task first to decide whether the defendant is liable. I am instructing you on damages only so that you will have guidance in the event you decide that the defendant is liable and that the plaintiff is entitled to recover money from the defendant.

 

b. 15.2 Compensatory Damages

 

If you find that the defendant is liable to the plaintiff, then you
must determine an amount that is fair compensation for all of the plaintiff’s damages. These damages are called compensatory damages. The purpose of compensatory damages is to make the plaintiff whole that is, to compensate the plaintiff for the damage that the plaintiff has suffered. [Compensatory damages are not limited to expenses that the plaintiff may have incurred because of his injury. If the plaintiff wins, he is entitled to compensatory damages for the physical injury, pain and suffering, mental anguish, shock and discomfort that he has suffered because of the defendant’s conduct.]

 

You may award compensatory damages only for injuries
that the plaintiff proves were proximately caused by the defendant’s allegedly wrongful conduct. The damages that you award must be fair compensation for all of the plaintiff’s damages, no more and no less. [Damages are not allowed as a punishment and cannot be imposed or increased to penalize the defendant.] You should not award compensatory damages for speculative injuries, but only for those injuries which the plaintiff has actually suffered or that the plaintiff is reasonably likely to suffer in the future.

 

If you decide to award compensatory damages, you should
be guided by dispassionate common sense. Computing damages may be difficult, but you must not let that difficulty lead you to engage in arbitrary guesswork. On the other hand, the law does not require that the plaintiff prove the amount of his losses with mathematical precision, but only with as much definiteness and accuracy as the circumstances permit.

 

You must use sound discretion in fixing an award of
damages, drawing reasonable inferences where you find them appropriate from the facts and circumstances in evidence.

 

You should consider the following elements of damage,
to the extent you find them proved by a preponderance of the evidence:

 

[Select appropriate charges from Section 15.3, et seq.]

 

c. 15.3 Calculation of Past and Future Damages (Partial)

 

15.3 CALCULATION OF PAST AND FUTURE DAMAGESA. Damages AccruedIf you find for the plaintiff, he is entitled to recover an amount
that will fairly compensate him for any damages he has suffered to date.

 

B. Calculation of Future DamagesIf you find that the plaintiff is reasonably certain to suffer
damages in the future from his injuries, then you should award him the amount you believe would fairly compensate him for such future damages. [In calculating future damages, you should consider the standard table of mortality as compiled by the United States Bureau of the Census, or other recognized mortality table.]

 

* * *

 

If you make any award for future medical expenses,
should adjust or discount the award to present value in the same manner as with loss of future earnings.

 

However, you must not make any adjustment to present
value for any damages you may award for future pain and suffering or future mental anguish.

 

3. Seventh Circuit Draft Model Instructions 3.09 and 3.10

 

a. 3.09 Damages: General

 

If you find that Plaintiff has proved [any of] his claim[s]
against [any of] Defendant(s), then you must determine what amount of dam ages, if any, [plaintiff] is entitled to recover. Plaintiff must prove his damages by a preponderance of the evidence.

 

If you find that Plaintiff has failed to prove [all of] his claim[s],
then you will not consider the question of damages.

 

Committee CommentsThese pattern damage instructions are applicable, with
certain limitations, to single plaintiff discrimination and retaliation claims under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq., the Americans with Disabilities Act, 42 U.S.C. §12101 et seq., and the Civil Rights Act of 1866, 42 U.S.C. §1981. Damages instructions relating to claims under the Equal Pay Act, 29 U.S.C. §206(d), are contained in the pattern instructions under that Act. See Instruction No. 5.11. An instruction relating to the recovery of liquidated damages under the Age Discrimination in Employment Act is contained in the pattern employment discrimination instructions. See Instruction No. 3.06.

 

b. 3.10 Compensatory Damages

 

Plaintiff must prove his damages by a preponderance of the
evidence. Your award must be based on evidence and not speculation or guesswork. This does not mean, however, that compensatory damages are restricted to the actual loss of money; they include both the physical and mental aspects of injury, even if they are not easy to measure.

 

In calculating damages, you should not consider the issue
of lost wages and benefits. The court will calculate and determine any damages for past or future lost wages and benefits. You should consider the following types of compensatory damages, and no others:

 

1. The physical [and mental/emotional] pain and suffering
[ [and disability/loss of a normal life] that Plaintiff has experienced [and is reasonably certain to experience in the future]. No evidence of the dollar value of physical [or mental/emotional] pain and suffering [or disability/loss of a normal life] has been or needs to be introduced. There is no exact standard for setting the damages to be awarded on account of pain and suffering. You are to determine an amount that will fairly compensate Plaintiff for the injury he has sustained.]

 

[2. The reasonable value of medical care that Plaintiff
reasonably needed and actually received [as well as the present value of the care that he is reasonably certain to need and receive in the future.]]

 

[3. Describe any expenses, other than lost pay, that
Plaintiff reasonably incurred or will incur in the future as a direct result of the Defendant’s discrimination/retaliation]

 

[4. Describe any loss (other than lost pay) caused by
Defendant in Plaintiff’s future earning capacity.]Committee Comments

 

a. ADEA: Compensatory damages are available under the
ADEA. Muskowitz v. Trustees of Purdue University, 5 F.3d 279, 283-284 (7th Cir. 1993).

 

b. ADA Retaliation Claims: Compensatory damages are not
available on ADA retaliation claims. Kramer v. Bank of America Securities, 355 F.3d 961, 965 (7th Cir. 2004).

 

c. Back Pay and Front Pay: Under Title VII and the ADA, back
pay and front pay are equitable remedies to be decided by the court. However, the court may empanel the jury as an advisory jury on the issue; or the parties may, with the court’s consent, agree that the jury will decide the issue. Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 499-501 (7th Cir. 2000). Front pay is typically awarded in cases where the equitable remedy of reinstatement is unavailable. Lindale v. Tokheim Corp., 145 F.3d 953, 959 (7th Cir. 1998); Williams v. Pharmacia Inc., 137 F.3d 944, 951-952 (7th Cir. 1998).

 

d. Lost Future Earnings: Compensatory damages may
include “lost future earnings,” i.e., the diminution in expected earnings in all future jobs due to reputational or other injuries, over and above any front pay award. Where there is such evidence, the language should be drafted for use in the bracketed fourth paragraph. Care must be taken to distinguish front pay and lost future earnings, which serve different functions. Williams v. Pharmacia, Inc., 137 F.3d 944, 953-954 (7th Cir. 1998):

 

[T]he calculation of front pay differs significantly from the calculation of lost future earnings. Whereas front pay compensates the plaintiff for the lost earnings from her old job for as long as she may have been expected to hold it, a lost future earnings award compensates the plaintiff for the diminution in expected earnings in all of her future jobs for as long as the reputational or other injury may be expected to affect her prospects. * * * [W]e caution lower courts to take care to separate the equitable remedy of front pay from the compensatory remedy of lost future earnings. * * * Properly understood, the two types of damages compensate for different injuries and require the court to make different kinds of calculations and factual findings. District courts should be vigilant to ensure that their damage inquiries are appropriately cabined to protect against confusion and potential overcompensation of plaintiffs.

 

A special interrogatory may be necessary for the court to prevent a double recovery.

 

4. Eighth Circuit Model Instruction 5.02 (Partial)If you find in favor of plaintiff under Instruction ____ 1 and if
you answer “no” in response to Instruction ____ 2, then you must award plaintiff such sum as you find by the [(greater weight) (preponderance)] 3 of the evidence will fairly and justly compensate plaintiff for any damages you find plaintiff sustained as a direct result of [describe defendant’s decision—e.g., “defendant’s decision to discharge plaintiff”]. Plaintiff’s claim for damages includes three distinct types of damages and you must consider them separately:

 

* * *

 

Second, you must determine the amount of any other
damages sustained by plaintiff, such as [list damages supported by the evidence]. 8 You must enter separate amounts for each type of damages in the verdict form and must not include the same items in more than one category.

 

* * *

 

[Remember, throughout your deliberations, you must not
engage in any speculation, guess, or conjecture and you must not award damages under this Instruction by way of punishment or through sympathy.] 10

 

Committee CommentsBecause the law imposes a limit on general compensatory
damages but does not limit the recovery of back pay and lost benefits, the Committee believes that these types of damages must be considered and assessed separately by the jury. Otherwise, if the jury awarded a single dollar amount, it would be impossible to identify the portion of the award that was attributable to back pay and the portion that was attributable to “general damages.” As a result, the trial court would not be able to determine whether the jury’s award exceeded the statutory limit.

 

* * *

 

Although the Civil Rights Act of 1991 expressly limits the
amount of compensatory and punitive damages depending upon the size of the employer, section 102 of the Act expressly states that the jury shall not be advised on any such limitation. Instead, the trial court will simply reduce the verdict by the amount of any excess.

 

Notes on Use1. Fill in the number or title of the essential elements
instruction here.

 

2. Fill in the number or title of the “same decision” instruction here.3. Select the bracketed language that corresponds to the
burden-of-proof instruction given.