Fill and Sign the Jury Instruction 123 Sex Discrimination Quid Pro Quo Violation Form

1.2.3 Title VII - Civil Rights Act Sex Discrimination Quid Pro Quo Violation 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 sex or gender. More specifically, the Plaintiff claims that [he] [she] was subjected to a form of sexual discrimination known as a “quid pro quo” violation. The Defendant denies that it violated the Plaintiff’s rights 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 subjected by [his] [her] supervisor to a quid pro quo sexual demand or threat, as hereafter defined; Second: That a material alteration in the terms and conditions of the Plaintiff’s employment was imposed upon the Plaintiff because of [his] [her] rejection of the quid pro quo sexual demand or threat; and Third: That the Plaintiff suffered damages as a proximate or legal result of such violation. [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.] When a quid pro quo sexual demand or threat is made by a supervisor with immediate or successively higher authority over the Plaintiff, the Defendant employer is responsible under the law for such behavior. The term “quid pro quo” simply means “this for that,” and it is unlawful for a supervisor of an employee to either demand sexual favors from the employee in exchange for favorable treatment in the workplace, or to change - - or threaten to change - - the terms and conditions of a person’s employment as a means of forcing or coercing, or attempting to force or coerce, sexual favors from the employee. In either case, however, the demand or the threat for sexual favors by the supervisor must be (1) such that a reasonable person would have regarded the demand or threat as a real or serious effort on the part of the supervisor to gain a sexual favor, and it must be (2) unwelcome to the employee in the sense that the employee did not solicit or invite it, expressly or implicitly, and in the sense that the employee regarded the conduct as undesirable or offensive. [The fact that an employee may have consented to engaging in sex related conduct in response to a demand or threat does not, in and of itself, establish that such conduct was invited by or welcome to the consenting employee, but is one of the factors you may consider in deciding that issue.] Finally, in order for the Plaintiff to recover damages for having been subjected to unlawful quid pro quo sexual discrimination, 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. In the event you find from a preponderance of the evidence that the Defendant did discriminate against the Plaintiff, you must then determine the amount of damages the Plaintiff has sustained. In considering the issue of the Plaintiff's damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of the Plaintiff's damages, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize the Defendant. Also, compensatory damages must not be based on speculation or guesswork because it is only actual damages that are recoverable. [On the other hand, compensatory damages are not restricted to actual loss of time or money; they cover both the mental and physical aspects of injury - - tangible and intangible. Thus, no evidence of the value of such intangible things as emotional pain and mental anguish has been or need be introduced. In that respect it is not value you are trying to determine, but an amount that will fairly compensate the Plaintiff for those claims of damage. There is no exact standard to be applied; any such award should be fair and just in the light of the evidence.] You should consider the following elements of damage, to the extent you find them proved by a preponderance of the evidence, and no others: (a) Net lost wages and benefits to the date of trial; (b) Mental and emotional humiliation or pain and anguish. [(c) Punitive damages, if any (as explained in the Court’s instructions)] [You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to "mitigate" those damages - - that is, to take advantage of any reasonable opportunity that may have existed under the circumstances to reduce or minimize the loss or damage. So, if you should find from a preponderance of the evidence that the Plaintiff failed to seek out or take advantage of a business or employment opportunity that was reasonably available under all the circumstances shown by the evidence, then you should reduce the amount of the Plaintiff's damages by the amount that could have been reasonably realized if the Plaintiff had taken advantage of such opportunity.] [The Plaintiff also claims that the acts of the Defendant were done with malice or reckless indifference to the Plaintiff's federally protected rights so as to entitle the Plaintiff to an award of punitive damages in addition to compensatory damages. In some cases punitive damages may be awarded for the purpose of punishing the Defendant for its wrongful conduct and to deter others from engaging in similar wrongful conduct. However, an employer may not be held liable for punitive damages because of discriminatory acts on the part of its managerial employees where those acts by such employees are contrary to the employer’s own good faith efforts to comply with the law by implementing policies and programs designed to prevent such unlawful discrimination in the workplace. So, an award of punitive damages would be appropriate only if you find for the Plaintiff and then further find from a preponderance of the evidence (1) that a higher management official of the Defendant personally acted with malice or reckless indifference to the Plaintiff’s federally protected rights, and (2) that the employer itself had not acted in a good faith attempt to comply with the law by adopting policies and procedures designed to prohibit such discrimination in the workplace. If you find that punitive damages should be assessed against the Defendant, you may consider the financial resources of the Defendant in fixing the amount of such damages.] 1.2.3 Title VII - Civil Rights Act Sex Discrimination Quid Pro Quo Violation SPECIAL INTERROGATORIES TO THE JURY Do you find from a preponderance of the evidence: 1. That the Plaintiff was subjected by [his] [her] supervisor to a quid pro quo sexual demand or threat (as those terms are explained in the Court’s instructions)? Answer Yes or No [Note: If you answered No to Question No. 1 you need not answer the remaining questions.] 2. That a material alteration in the terms and conditions of the Plaintiff’s employment was imposed upon the Plaintiff because of [his] [her] rejection of the quid pro quo sexual demand or threat? Answer Yes or No [Note: If you answered No to Question No. 2 you need not answer the remaining questions.] 3. That the Plaintiff suffered damages as a proximate or legal result of such sexual demand or threat? Answer Yes or No 4(a). That a higher management official of the Defendant acted with malice or reckless indifference to the Plaintiff’s federally protected rights? Answer Yes or No (b) If your answer is Yes, that the Defendant itself had not acted in a good faith attempt to comply with the law by adopting policies and procedures designed to prohibit such discrimination in the workplace? Answer Yes or No (c) If your answer is Yes, what amount of punitive damages, if any, should be assessed against the Defendant? $       . SO SAY WE ALL. Foreperson DATED:       ANNOTATIONS AND COMMENTS The elements of a quid pro quo form of unlawful sexual harassment were set out in Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). See also Virgo v. Riviera Beach Associates, Ltd., 30 F.3d 1350 (11th Cir. 1994). In the case of a quid pro quo violation (as distinguished from a hostile or abusive environment case), the employer is strictly liable for the offending supervisor’s unlawful conduct. Henson, 682 F.2d at 910. With regard to remedies, see the Annotations and Comments following Federal Claims Instruction 1.2.1, supra. In that portion of this instruction (Federal Claims Instruction 1.2.3) dealing with damages, the element of back pay is listed but would normally be recoverable in a quid pro quo case only where the Plaintiff is also claiming a constructive discharge (See Federal Claims Instruction 1.9.2, infra,) or an adverse employment action in retaliation for a rebuff of the sexual demand or threat (See Federal Claims Instruction 1.9.3, infra.). The Eleventh Circuit has recently clarified the test for recovering punitive damages in a Title VII hostile work environment action. An aggrieved plaintiff must demonstrate some form of reckless or egregious conduct, such as: (1) a pattern of discrimination; (2) spite or malevolence; or (3) a blatant disregard for civil obligations. Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322-23 (11th Cir. 1999). Punitive damages will ordinarily not be assessed against employers with only constructive knowledge of the violations. Id., splunge v. Shoney’s, Inc., 97 F.3d 488, 491 (11th Cir. 1996). To get punitive damages, a Title VII plaintiff must “show either that the discriminating employee was ‘high[ ] up the corporate hierarchy,’ or that ‘higher management’ countenanced or approved [his] behavior.” Dudley, 166 F.3d at 1323 (internal citations omitted). In Dudley, the Eleventh Circuit held that a store comanager and store manager were not sufficiently high enough up the employer’s corporate hierarchy to allow their discriminatory acts to be the basis for punitive damages against the corporation. Id. Because an employer is strictly liable for an offending supervisor’s unlawful conduct in a quid pro quo violation, the question remains whether the standard enunciated in Dudley applies in the quid pro quo cause of action. As of this printing, no decisions in this Circuit have addressed this issue.