CACI No. 2500. Disparate Treatment - Essential Factual Elements (Gov. Code, § 12940(a))
Judicial Council of California Civil Jury Instructions (2023 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/nonbinary pronoun]. 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, May
2020
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
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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 406].)
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 the plaintiff 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).
• “Race” and “Protective Hairstyles.” Government Code section 12926(w), (x).
• “[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
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[115 Cal.Rptr.3d 453], internal citations omitted.)
• “The McDonnell Douglas framework was designed as ‘an analytical tool for use
by the trial judge in applying the law, not a concept to be understood and
applied by the jury in the factfinding process.’ ” (Abed v. Western Dental
Services, Inc. (2018) 23 Cal.App.5th 726, 737 [233 Cal.Rptr.3d 242].)
• “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].)
• “We conclude that where a plaintiff establishes a prima facie case of
discrimination based on a failure to interview her for open positions, the
employer must do more than produce evidence that the hiring authorities did not
know why she was not interviewed. Nor is it enough for the employer, in a writ
petition or on appeal, to cobble together after-the-fact possible nondiscriminatory
reasons. While the stage-two burden of production is not onerous, the employer
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must clearly state the actual nondiscriminatory reason for the challenged
conduct.” (Dept. of Corrections & Rehabilitation v. State Personnel Bd. (2022)
74 Cal.App.5th 908, 930 [290 Cal.Rptr.3d 70], original italics.)
• “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.)
• “Although ‘[t]he specific elements of a prima facie case may vary depending on
the particular facts,’ the plaintiff in a failure-to-hire case ‘[g]enerally . . . must
provide evidence that (1) he [or she] was a member of a protected class, (2) he
[or she] was qualified for the position he [or she] sought . . . , (3) he [or she]
suffered an adverse employment action, such as . . . denial of an available job,
and (4) some other circumstance suggests discriminatory motive,’ such as that
the position remained open and the employer continued to solicit applications for
it.” (Abed, supra, 23 Cal.App.5th at p. 736.)
• “Although we recognize that in most cases, a plaintiff who did not apply for a
position will be unable to prove a claim of discriminatory failure to hire, a job
application is not an element of the claim.” (Abed, supra, 23 Cal.App.5th at p.
740, original italics.)
• “Employers who lie about the existence of open positions are not immune from
liability under the FEHA simply because they are effective in keeping protected
persons from applying.” (Abed, supra, 23 Cal.App.5th at p. 741.)
• “[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
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Cal.App.4th 143, 170-171 [125 Cal.Rptr.3d 1], original italics, internal citations
omitted.)
• “[W]e hold that a residency program’s claim that it terminated a resident for
academic reasons is not entitled to deference. . . . [T]he jury should be
instructed to evaluate, without deference, whether the program terminated the
resident for a genuine academic reason or because of an impermissible reason
such as retaliation or the resident’s gender.” (Khoiny v. Dignity Health (2022) 76
Cal.App.5th 390, 404 [291 Cal.Rptr.3d 496].)
• “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.)
• “Evidence that an employer’s proffered reasons were pretextual does not
necessarily establish that the employer intentionally discriminated: ‘ “ ‘[I]t is not
enough . . . to disbelieve the employer; the factfinder must believe the plaintiff’s
explanation of intentional discrimination.’ ” ’ However, evidence of pretext is
important: ‘ “[A] plaintiff’s prima facie case, combined with sufficient evidence
to find that the employer’s asserted justification is false, may permit the trier of
fact to conclude that the employer unlawfully discriminated.” ’ ” (Diego v. City
of Los Angeles (2017) 15 Cal.App.5th 338, 350-351 [223 Cal.Rptr.3d 173],
internal citations omitted.)
• “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
italics.)
• “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
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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.)
• “In no way did the Court of Appeal in Reeves overturn the long-standing rule
that comparator evidence is relevant and admissible where the plaintiff and the
comparator are similarly situated in all relevant respects and the comparator is
treated more favorably. Rather, it held that in a job hiring case, and in the
context of a summary judgment motion, a plaintiff’s weak comparator evidence
‘alone’ is insufficient to show pretext.” (Gupta v. Trustees of California State
University (2019) 40 Cal.App.5th 510, 521 [253 Cal.Rptr.3d 277].)
• “[Defendant] contends that a trial court must assess the relative strength and
nature of the evidence presented on summary judgment in determining if the
plaintiff has ‘created only a weak issue of fact.’ However, [defendant] overlooks
that a review of all of the evidence is essential to that assessment. The stray
remarks doctrine, as advocated by [defendant], goes further. It allows a court to
weigh and assess the remarks in isolation, and to disregard the potentially
damaging nature of discriminatory remarks simply because they are made by
‘nondecisionmakers, or [made] by decisionmakers unrelated to the decisional
process.’ [Defendant] also argues that ambiguous remarks are stray, irrelevant,
prejudicial, and inadmissible. However, ‘the task of disambiguating ambiguous
utterances is for trial, not for summary judgment.’ Determining the weight of
discriminatory or ambiguous remarks is a role reserved for the jury. The stray
remarks doctrine allows the trial court to remove this role from the jury.” (Reid
v. Google, Inc. (2010) 50 Cal.4th 512, 540-541 [113 Cal.Rptr.3d 327, 235 P.3d
988], internal citations omitted; see Gov. Code, § 12923(c) [Legislature affirms
the decision in Reid v. Google, Inc. in its rejection of the “stray remarks
doctrine”].)
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• “[D]iscriminatory remarks can be relevant in determining whether intentional
discrimination occurred: ‘Although stray remarks may not have strong probative
value when viewed in isolation, they may corroborate direct evidence of
discrimination or gain significance in conjunction with other circumstantial
evidence. Certainly, who made the comments, when they were made in relation
to the adverse employment decision, and in what context they were made are all
factors that should be considered.” (Husman v. Toyota Motor Credit Corp.
(2017) 12 Cal.App.5th 1168, 1190-1191 [220 Cal.Rptr.3d 42].)
• “Discrimination on the basis of an employee’s foreign accent is a sufficient basis
for finding national origin discrimination.” (Galvan v. Dameron Hospital Assn.
(2019) 37 Cal.App.5th 549, 562 [250 Cal.Rptr.3d 16].)
• “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 (11th ed. 2017) Constitutional Law, § 1025 et
seq.
Chin et al., California 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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© Judicial Council of California.
