CACI No. 2500. Disparate Treatment—Essential Factual Elements (Gov. Code, § 12940(a))

Judicial Council of California Civil Jury Instructions (2017 edition)

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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];]
3. [or]
3. [That [name of defendant] subjected [name of plaintiff] to an
adverse employment action;]
3. [or]
3. [That [name of plaintiff] was constructively discharged;]
4. That [name of plaintiff]’s [protected status—for example, race,
gender, or age] was a substantial motivating reason for [name of
defendant]’s [decision to [discharge/refuse to hire/[other adverse
employment action]] [name of plaintiff]/conduct];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised April 2009, June 2011, June 2012, June 2013
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.
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 under the FEHA
include labor organizations, employment agencies, and apprenticeship training
programs. (See Gov. Code, § 12940(a)–(d).)
Read the first option for element 3 if there is no dispute as to whether the
employer’s acts constituted an adverse employment action. Read the second option
and also give CACI No. 2509, “Adverse Employment Action” Explained, if
whether there was an adverse employment action is a question of fact for the jury.
If constructive discharge is alleged, give the third option for element 3 and also
give CACI No. 2510, “Constructive Discharge” Explained. Select “conduct” in
element 4 if either the second or third option is included for element 3.
Note that there are two causation elements. There must be a causal link between
the discriminatory animus and the adverse action (see element 4), and there must
be a causal link between the adverse action and the damage (see element 6). (See
Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 [81 Cal.Rptr.3d
Element 4 requires that discrimination based on a protected classification be a
substantial motivating reason for the adverse action. (See Harris v. City of Santa
Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; see also
CACI No. 2507, “Substantial Motivating Reason” Explained.) Modify element 4 if
plaintiff was not actually a member of the protected class, but alleges
discrimination because he or she was perceived to be a member, or associated with
someone who was or was perceived to be a member, of the protected class. (See
Gov. Code, § 12926(o).)
For damages instructions, see applicable instructions on tort damages.
Sources and Authority
• Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• Perception and Association. Government Code section 12926(o).
• “[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].)
• “California has adopted the three-stage burden-shifting test for discrimination
claims set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93
S.Ct. 1817, 36 L.Ed. 2d 668]. ‘This so-called McDonnell Douglas test reflects
the principle that direct evidence of intentional discrimination is rare, and that
such claims must usually be proved circumstantially. Thus, by successive steps
of increasingly narrow focus, the test allows discrimination to be inferred from
facts that create a reasonable likelihood of bias and are not satisfactorily
explained.’ ” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 307
[115 Cal.Rptr.3d 453], internal citations omitted.)
• “At trial, the McDonnell Douglas test places on the plaintiff the initial burden
to establish a prima facie case of discrimination. This step is designed to
eliminate at the outset the most patently meritless claims, as where the plaintiff
is not a member of the protected class or was clearly unqualified, or where the
job he sought was withdrawn and never filled. While the plaintiff’s prima facie
burden is ‘not onerous’, he must at least show ‘ “actions taken by the employer
from which one can infer, if such actions remain unexplained, that it is more
likely than not that such actions were ‘based on a [prohibited] discriminatory
criterion . . . .’ . . . .” . . .’ ” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 354–355 [100 Cal.Rptr.2d 352, 8 P.3d 1089], internal citations omitted.)
• “If, at trial, the plaintiff establishes a prima facie case, a presumption of
discrimination arises. This presumption, though ‘rebuttable,’ is ‘legally
mandatory.’ Thus, in a trial, ‘[i]f the trier of fact believes the plaintiff’s
evidence, and if the employer is silent in the face of the presumption, the court
must enter judgment for the plaintiff because no issue of fact remains in the
case.’ [¶] Accordingly, at this trial stage, the burden shifts to the employer to
rebut the presumption by producing admissible evidence, sufficient to ‘raise[] a
genuine issue of fact’ and to ‘justify a judgment for the [employer],’ that its
action was taken for a legitimate, nondiscriminatory reason. [¶] If the employer
sustains this burden, the presumption of discrimination disappears. The plaintiff
must then have the opportunity to attack the employer’s proffered reasons as
pretexts for discrimination, or to offer any other evidence of discriminatory
motive. In an appropriate case, evidence of dishonest reasons, considered
together with the elements of the prima facie case, may permit a finding of
prohibited bias. The ultimate burden of persuasion on the issue of actual
discrimination remains with the plaintiff.” (Guz,supra, 24 Cal.4th at pp.
355–356, internal citations omitted.)
• “The trial court decides the first two stages of the McDonnell Douglas test as
questions of law. If the plaintiff and defendant satisfy their respective burdens,
the presumption of discrimination disappears and the question whether the
defendant unlawfully discriminated against the plaintiff is submitted to the jury
to decide whether it believes the defendant’s or the plaintiff’s explanation.”
(Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 965
[181 Cal.Rptr.3d 553].)
• “To succeed on a disparate treatment claim at trial, the plaintiff has the initial
burden of establishing a prima facie case of discrimination, to wit, a set of
circumstances that, if unexplained, permit an inference that it is more likely
than not the employer intentionally treated the employee less favorably than
others on prohibited grounds. Based on the inherent difficulties of showing
intentional discrimination, courts have generally adopted a multifactor test to
determine if a plaintiff was subject to disparate treatment. The plaintiff must
generally show that: he or she was a member of a protected class; was qualified
for the position he sought; suffered an adverse employment action, and there
were circumstances suggesting that the employer acted with a discriminatory
motive. [¶] On a defense motion for summary judgment against a disparate
treatment claim, the defendant must show either that one of these elements
cannot be established or that there were one or more legitimate,
nondiscriminatory reasons underlying the adverse employment action.” (Jones v.
Department of Corrections (2007) 152 Cal.App.4th 1367, 1379 [62 Cal.Rptr.3d
200], internal citations omitted.)
• “[Defendant] still could shift the burden to [plaintiff] by presenting admissible
evidence showing a legitimate, nondiscriminatory reason for terminating her. ‘It
is the employer’s honest belief in the stated reasons for firing an employee and
not the objective truth or falsity of the underlying facts that is at issue in a
discrimination case.’ . . . ‘[I]f nondiscriminatory, [the employer’s] true reasons
need not necessarily have been wise or correct. . . . While the objective
soundness of an employer’s proffered reasons supports their credibility . . . , the
ultimate issue is simply whether the employer acted with a motive to
discriminate illegally. Thus, “legitimate” reasons . . . in this context are
reasons that are facially unrelated to prohibited bias, and which, if true, would
thus preclude a finding of discrimination. . . .’ ” (Wills v. Superior Court (2011)
195 Cal.App.4th 143, 170–171 [125 Cal.Rptr.3d 1], original italics, internal
citations omitted.)
• “The burden therefore shifted to [plaintiff] to present evidence showing the
[defendant] engaged in intentional discrimination. To meet her burden,
[plaintiff] had to present evidence showing (1) the [defendant]’s stated reason
for not renewing her contract was untrue or pretextual; (2) the [defendant] acted
with a discriminatory animus in not renewing her contract; or (3) a combination
of the two.” (Swanson, supra, 232 Cal.App.4th at p. 966.)
• “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.)
• “Requiring the plaintiff to show that discrimination was a substantial motivating
factor, rather than simply amotivating factor, more effectively ensures that
liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability, even if other factors would have led the employer to make
the same decision at the time.” (Harris,supra, 56 Cal.4th at p. 232, original
• “We do not suggest that discrimination must be alone sufficient to bring about
an employment decision in order to constitute a substantial motivating factor.
But it is important to recognize that discrimination can be serious,
consequential, and even by itself determinative of an employment decision
without also being a “but for” cause.” (Harris,supra, 56 Cal.4th at p. 229.)
• “In cases involving a comparison of the plaintiff’s qualifications and those of
the successful candidate, we must assume that a reasonable juror who might
disagree with the employer’s decision, but would find the question close, would
not usually infer discrimination on the basis of a comparison of qualifications
alone. In a close case, a reasonable juror would usually assume that the
employer is more capable of assessing the significance of small differences in
the qualifications of the candidates, or that the employer simply made a
judgment call. [Citation.] But this does not mean that a reasonable juror would
in every case defer to the employer’s assessment. If that were so, no job
discrimination case could ever go to trial. If a factfinder can conclude that a
reasonable employer would have found the plaintiff to be significantly better
qualified for the job, but this employer did not, the factfinder can legitimately
infer that the employer consciously selected a less-qualified
candidate—something that employers do not usually do, unless some other
strong consideration, such as discrimination, enters into the picture.” (Reeves v.
MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 674–675 [111 Cal.Rptr.3d
896], original italics.)
• “While not all cases hold that ‘the disparity in candidates’ qualifications “must
be so apparent as to jump off the page and slap us in the face to support a
finding of pretext” ’ the precedents do consistently require that the disparity be
substantial to support an inference of discrimination.” (Reeves,supra, 186
Cal.App.4th at p. 675, internal citation omitted.)
• “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 (10th ed. 2005) Constitutional Law, §§ 915,
916, 918
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The
California Fair Employment And Housing Act, ¶¶ 7:194, 7:200–7:201, 7:356,
7:391–7:392 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.44–2.82
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.23[2] (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 2:2, 2:20 (Thomson Reuters)

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