South Dakota Jury Instruction — 1.2.2 Race And Or Sex Discrimination Hostile Work Environment Created Or Permitted By Supervisor — With Affirmative Defense By Employer The South Dakota Jury Instruction 1.2.2 deals with cases of race and/or sex discrimination where a hostile work environment is created or permitted by a supervisor. In such instances, employees have the right to seek legal recourse against their employers. This instruction provides important guidance to the jury in understanding the elements and affirmative defenses involved in such cases. Race and sex discrimination in the workplace are serious issues that can create a hostile work environment. This instruction enables the jury to carefully consider the evidence and determine if the plaintiff has proven their case by a preponderance of the evidence, and if the employer can assert an affirmative defense. This instruction outlines the essential elements that must be established for a hostile work environment claim, including: 1. Discrimination based on race and/or sex: The plaintiff must demonstrate that they were subjected to unwelcome conduct or actions based on their race and/or sex. 2. Severity and pervasiveness: The plaintiff must show that the discrimination was so severe and pervasive that it created an abusive or hostile work environment. 3. Supervisor involvement: The plaintiff must establish that a supervisor, acting in their official capacity, either knowingly created or permitted the hostile work environment. 4. Employer liability: The jury must determine if the employer should be held liable for the supervisor's actions, considering factors such as whether they had knowledge of the discriminatory conduct and took prompt and appropriate corrective measures. Furthermore, the instruction acknowledges the affirmative defense employers can assert in these cases. An affirmative defense is when an employer takes responsibility for the supervisor's actions but argues that they had established reasonable preventive measures to prevent and promptly correct any discriminatory behavior. This defense calls for the jury to assess if the employer can establish the following: 1. Reasonable preventive measures: The employer must prove that they had effective policies, procedures, and training in place to prevent and address discrimination in the workplace. 2. Prompt and appropriate corrective action: The employer must demonstrate that they took swift and appropriate action upon receiving notice of the alleged discrimination, such as investigating the complaint and disciplining or retraining the supervisor involved. Overall, the South Dakota Jury Instruction 1.2.2 serves as a comprehensive guide for the jury to understand the elements involved in a race and/or sex discrimination hostile work environment claim against a supervisor. It emphasizes the importance of holding both the supervisor and employer accountable, while allowing the employer the opportunity to assert an affirmative defense based on reasonable preventive measures and prompt corrective action.