10.5 CIVIL RIGHTS—TITLE VII—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] [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.
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 Systems, Inc., 510 U.S. 17, 23 (1993).
This instruction should be given in conjunction with other appropriate instructions, including Instructions 10.6 (Hostile Work Environment Caused by Supervisor—Claim Based on Vicarious Liability—Tangible Employment Action—Affirmative Defense); 10.7 (Hostile Work Environment Caused by Non-Immediate Supervisor or by Co-Worker—Claim Based On Negligence); and, if necessary, 10.12 ("Tangible Employment Action" Defined).
When an affirmative defense is asserted, this instruction should be accompanied by the appropriate affirmative defense instruction.
"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; see also Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 687 (9th Cir.2017) (conducting objective inquiry from perspective of reasonable member of applicable ethnic group).