PJC Business

E MPLOYMENT

PJC 107.23

PJC 107.23 Instruction on Harassment by Supervisory Employee Not Involving Tangible Employment Action (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 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. the conduct was committed by a supervisor who had authority over hiring, advancement, dismissals, discipline, or other employment decisions affecting Paul Payne . 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 107.23 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 a supervisor of the employee but no tangible employment action. This instruction should not be used for a claim of sexual harass ment. For a discussion on the use of “sex” in the instruction, including that it may not involve conduct of a sexual nature, see the comment “Sexual nature requirement imposed by section 21.142” in PJC 107.21. Source of instruction. PJC 107.23 is derived from Faragher v. City of Boca Raton , 524 U.S. 775, 787–88 (1998); Burlington Industries, Inc. v. Ellerth , 524 U.S. 742, 753–54 (1998); Harris v. Forklift Systems, Inc. , 510 U.S. 17, 23 (1993); Meritor Savings Bank, FSB v. Vinson , 477 U.S. 57 (1986); City of Houston v. Fletcher , 166 S.W.3d 479, 490–91 (Tex. App.—Eastland 2005, pet. denied) (claim of hostile work

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