PJC Business

E MPLOYMENT

PJC 107.22

PJC 107.22 Instruction on Harassment by Nonsupervisory Employee (Hostile Environment) “Harassment based on [ sex, national origin, race, age, or other protected category ]” occurred if— 1. Paul Payne [ was subjected to ridicule or insult or other improper conduct ] based on Paul Payne ’s [ sex, national origin, race, age, or other appropriate protected category ] that was unwelcome and undesirable or offensive to Paul Payne ; and 2. the harassment complained of altered a term, condition, or privilege of employment; and 3. Don Davis knew or should have known of the harassment and Don Davis failed to take prompt, remedial action to eliminate the harassment. Harassment alters a term, condition, or privilege of employment when a rea sonable person would find that the harassment created an abusive working environment. In determining whether an abusive working environment existed, consider the following: the frequency of the conduct; its severity; whether it was physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. [or] COMMENT When to use. PJC 107.22 should be used with PJC 107.20 if it is alleged that the plaintiff has been subjected to what is commonly referred to as “a hostile environ ment” that involves harassment by an employee who is not a supervisor of the employee. This instruction should not be used for a claim of sexual harassment. For a discussion on the use of “sex” in the instruction, including that it may not involve con duct of a sexual nature, see the comment “Sexual nature requirement imposed by sec tion 21.142” in PJC 107.21. Source of instruction. PJC 107.22 is derived from Burlington Industries, Inc. v. Ellerth , 524 U.S. 742, 753–54 (1998); Faragher v. City of Boca Raton , 524 U.S. 775, 787–88 (1998); Harris v. Forklift Systems, Inc. , 510 U.S. 17, 23 (1993); and Meritor Savings Bank, FSB v. Vinson , 477 U.S. 57 (1986). See also Nash v. Electrospace Sys tem, Inc. , 9 F.3d 401, 404 (5th Cir. 1993); Jones v. Flagship International , 793 F.2d 714, 719–20 (5th Cir. 1986); Ewald v. Wornick Family Foods Corp. , 878 S.W.2d 653, 659 (Tex. App.—Corpus Christi–Edinburg 1994, writ denied).

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