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WPI 330.22 Employment Discrimination—Sexual Harassment—Quid Pro Quo—Burden of Proof

6A WAPRAC WPI 330.22Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.22 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part XVI. Employment
Chapter 330. Employment Discrimination
WPI 330.22 Employment Discrimination—Sexual Harassment—Quid Pro Quo—Burden of Proof
To establish [his] [her] claim of sexual harassment,(name of plaintiff)has the burden of proving each of the following propositions:
(1) That a [supervisor] [manager] subjected(name of plaintiff)to unwelcome sexual conduct or advances; and
(2) That the [supervisor] [manager] expressly or implicitly [promised] [threatened] a change in(name of plaintiff)'s [status] [conditions] [if] [unless](name of plaintiff)submitted to the conduct or advances.
If you find from your consideration of all of the evidence that each of these propositions has been proved, then your verdict should be for(name of plaintiff)[on this claim]. On the other hand, if any of these propositions has not been proved, then your verdict should be for(name of defendant)[on this claim].
The bracketed alternatives in this instruction are not necessarily mutually exclusive.
For cases involving other verbal or physical conduct of a sexual nature, see WPI 330.23 (Employment Discrimination—Workplace Harassment—Hostile Work Environment—Burden of Proof).
This instruction does not cover the claim of an individual who may claim quid pro quo sexual harassment by virtue of sexual advances toward other employees that affect the terms and conditions of the plaintiff's employment. A modified instruction should be prepared for such claims.
Use this instruction with WPI 330.21 (Employment Discrimination—Workplace Harassment—General) in a “quid pro quo” sexual harassment case. The instruction must also be adapted for a case brought by a plaintiff other than the employee from whom the sexual favors were sought.
If the bracketed word “manager” is selected in this instruction, then also use the corresponding definition from the first sentence of WPI 330.24 (Employment Discrimination—Harassment—Hostile Work Environment—“Manager” and “Management”—Definitions). There is no corresponding definition for “supervisor.” See the Comment.
This instruction is adapted from DeWater v. State, 130 Wn.2d 128, 134–35, 921 P.2d 1059 (1996). DeWater does not require a tangible job benefit or detriment as an element of quid pro quo harassment. See DeWater, 130 Wn.2d at 134–35. Nor does Schonauer v. DCR Ent., Inc., 79 Wn.App. 808, 823 n.26, 905 P.2d 392 (1995). But see Henningsen v. Worldcom, Inc., 102 Wn.App. 828, 840, 9 P.3d 948 (2000); Thompson v. Berta Enter., Inc., 72 Wn.App. 531, 537 n.5, 864 P.2d 983 (1994).
In contrast to a hostile work environment case, the actor's conduct need not be pervasive; one incident may be sufficient to support a cause of action. Schonauer, 79 Wn.App. at 823.
An employer is “strictly liable for quid pro quo harassment [by a supervisor who has] actual or apparent authority to make employment decisions on behalf of the employer.” DeWater, 130 Wn.2d at 135.
The sexual favors sought by an employer or supervisor need not be for the employer or supervisor directly. Schonauer, 79 Wn.App. at 823–24 (purpose behind harassment was to gratify customers).
EEOC Guidelines for Title VII, § 703, provide for the possibility of a quid pro quo sexual harassment suit by co-workers of an individual shown “sexual favoritism,” at least when it is based on submission to explicit or implicit coercive requests for sexual favors as opposed to voluntary romantic relationships. See 29 C.F.R. § 1604.11(g), and EEOC Policy Guide on Employer Liability for Sexual Favoritism under Title VII (1990), 405 Fair Employment Practices 6817, and federal cases cited therein.
While there are no decisions under RCW Chapter 49.60 that define “supervisor,” courts have indicated a supervisor is lower than a managerin an employer's hierarchy. See Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 407, 693 P.2d 708 (1985); Henningsen v. Worldcom, Inc., 102 Wn.App. 828, 838, 9 P.3d 948 (2000).
Relying on Vance v. Ball State, 570 U.S. 421, 133 S.Ct. 2434, 186 L.Ed.2d 565 (2013), the court in Ellorin v. Applied Finishing, Inc., 996 F.Supp. 2d 1070, 1084–85 (W.D. Wash. 2014), defined a supervisor as a person who could play a significant, possibly determinative role in such matters as hiring, firing, failing to promote or reassignment with significantly different responsibilities.
[Current as of October 2020.]
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