concurring in the result in Part IV.A.2.
Because I believe the Court gives a misim-pression of the error in the district court’s instructions, I concur in the result in Part IV.A.2. In its analysis, the Court gives an unduly restrictive interpretation to the jury instruction in concluding that the “based upon sex” requirement the district court included in the jury instructions was erroneous. For reasons indicated hereafter, I believe another instruction does incorrectly state the law and may have prejudiced or misled the jury.
As the Court correctly states, one element an employee must prove to demonstrate that a hostile work environment exists is:
that [he or she] was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.
De Los Santos, 126 Idaho at 967, 895 P.2d at 568 (emphasis added) (citing Ellison, 924 F.2d at 875-76). Hence, in order to prevail, an employee must show that the offensive conduct was based on “conduct of a sexual nature.” It is difficult for me to understand how the district court’s instruction “that the harassment was based upon sex” differs in any material way from this fundamental element of a hostile work environment claim. In fact, the United States Supreme Court expressly reaffirmed that an employee “ ‘may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.’” Harris v. Forklift Systems, Inc., 510 U.S. 17, 25, 114 S.Ct. 367, 372, 126 L.Ed.2d 295 (1993) *747(Ginsburg, J. concurring) (emphasis added) (quoting Meritor Savings Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986)).
The Court suggests that to permit the “based on sex” language to remain in the instruction, could result in an employee being required to endure a previously accepted type of conduct in the workplace even though any reasonable person would find it objectionable. On the contrary, so long as the offensive behavior was conduct of a sexual nature, whether or not it was motivated in particular by the employee, it would still be actionable. Likewise, the Court’s assertion that this instruction would permit offensive conduct so long as it was equally directed at both men and women, is misguided. Again, if the offensive conduct is of a sexual nature, it will be actionable, irrespective of the sex of the offended employee. The “based upon sex” wording in the jury instruction simply denotes the type of conduct being proscribed and not the motivation behind it.
I am admittedly troubled, however, by the district court’s attempt in the very next instruction to give further definition to the “based upon sex” requirement for the jury. That instruction, Instruction No. 11, reads as follows: “Plaintiff must prove that the alleged harassment was based upon her sex. That is, plaintiff must prove that because of her gender, she was the object of harassment.” The Court does not focus on this language, even though I think it comes much closer to requiring Fowler to prove that she was the motivation for the offensive conduct. I believe the Court correctly points out that Fowler does not have the burden of proving that she was the motivation for the conduct. To the contrary, as I point out above, she must merely show that the offensive language or behavior was conduct of a sexual nature. I believe Instruction No. 11 adds required elements to the plaintiffs ease which have no basis in the law. For that reason I concur in the result in this portion of the Court’s opinion.