California Civil Jury Instructions (CACI)

2500. Disparate Treatment—Essential Factual Elements (Gov. Code, § 12940(a))

[Name of plaintiff] claims that [name of defendant] wrongfully discriminated against [him/her]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] was [an employer/[other covered entity]];

2. That [name of plaintiff] [was an employee of [name of defendant]/applied to [name of defendant] for a job/[describe other covered relationship to defendant]];

3. That [name of defendant] [discharged/refused to hire/[other adverse employment action]] [name of plaintiff];

4. That [name of plaintiff]'s [protected status—for example, race, gender, or age] was a motivating reason for the [discharge/refusal to hire/[other adverse employment action]];

5. That [name of plaintiff] was harmed; and

6. That the [discharge/refusal to hire/[other adverse employment action]] was a substantial factor in causing [name of plaintiff]'s harm.

Directions for Use

This instruction is intended for use when a plaintiff alleges disparate treatment discrimination under the FEHA against an employer or other covered entity. Disparate treatment occurs when an employer treats an individual less favorably than others because of the individual's protected status. In contrast, disparate impact (the other general theory of discrimination) occurs when an employer has an employment practice that appears neutral but has an adverse impact on members of a protected group. For disparate impact claims, see CACI No. 2502, Disparate Impact—Essential Factual Elements (Gov. Code § 12940(a)).

Elements that are uncontested should be deleted from this instruction.

If element 1 is given, the court may need to instruct the jury on the statutory definition of "employer" under the FEHA. Other covered entities nder the FEHA include labor organizations, employment agencies, and apprenticeship training programs. (See Gov. Code, § 12940(a)-(d).)

For damages instructions, see applicable instructions on tort damages.

Sources and Authority

Government Code section 12940(a) provides that it is an unlawful employment practice "[f]or an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, or sexual orientation of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment."

Government Code section 12926(m) provides: " 'Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation' includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics."

"[C]onceptually the theory of 'disparate treatment' . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin. " (Mixon v. Fair Employment and Housing Com. (1987) 192 Cal.App.3d 1306, 1317 [237 Cal.Rptr. 884], quoting Teamsters v. United States (1977) 431 U.S. 324, 335-336, fn. 15 [97 S.Ct. 1843, 52 L.Ed.2d 396].)

"[W]hether or not a plaintiff has met his or her prima facie burden [under McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668]], and whether or not the defendant has rebutted the plaintiff's prima facie showing, are questions of law for the trial court, not questions of fact for the jury." (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201 [48 Cal.Rptr.2d 448].)

"[If] the case is submitted to the trier of fact, the intermediate burdens set forth in McDonnell Douglas will fall away, and the fact finder will have only to decide the ultimate issue of whether the employer's discriminatory intent was a motivating factor in the adverse employment decision." (Caldwell, supra, 41 Cal.App.4th at p. 205.)

"The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356 [100 Cal.Rptr.2d 352, 8 P.3d 1089].)

"While a complainant need not prove that [discriminatory] animus was the sole motivation behind a challenged action, he must prove by a preponderance of the evidence that there was a 'causal connection' between the employee's protected status and the adverse employment decision." (Mixon, supra, 192 Cal.App.3d at p. 1319.)

"Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes." (Guz, supra, 24 Cal.4th at p. 354.)

"We have held 'that, in a civil action under the FEHA, all relief generally available in noncontractual actions . . . may be obtained.' This includes injunctive relief." (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 [87 Cal.Rptr.2d 132, 980 P.2d 846], internal citations omitted.)

"The FEHA does not itself authorize punitive damages. It is, however, settled that California's punitive damages statute, Civil Code section 3294, applies to actions brought under the FEHA . . . ." (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1147-1148 [74 Cal.Rptr.2d 510], internal citations omitted.)

Secondary Sources

8 Witkin, Summary of California Law (9th ed. 1988) Constitutional Law, §§ 756-757, pp. 252-254; id. (2002 supp.) at §§ 756-757, pp. 131-134

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 2000) Discrimination Claims, §§ 2.61, 2.63, 2.66, pp. 50-51, 53, 55

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, §§ 43.01, 43.01[2][b] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.23[2] (Matthew Bender)

Bancroft-Whitney's California Civil Practice: Employment Litigation (2000 supp.) Discrimination in Employment, §§ 2.2, 2.20, pp. 20-21, 39-40

(New September 2003)