California Civil Jury Instructions (CACI) (2017)

2502. Disparate Impact - Essential Factual Elements (Gov. Code, § 12940(a))

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2502.Disparate Impact—Essential Factual Elements (Gov. Code,
§ 12940(a))
[Name of plaintiff] claims that [name of defendant] had [an employment
practice/a selection policy] that 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/[other covered relationship
to defendant]];
3. That [name of defendant] had [an employment practice of
[describe practice]/a selection policy of [describe policy]] that had
a disproportionate adverse effect on [describe protected group—for
example, persons over the age of 40];
4. That [name of plaintiff] is [protected status];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s [employment practice/selection policy]
was a substantial factor in causing [name of plaintiff]’s harm.
New September 2003; Revised June 2011
Directions for Use
This instruction is intended for disparate impact employment discrimination claims.
Disparate impact occurs when an employer has an employment practice that
appears neutral but has an adverse impact on members of a protected group and
cannot be justified by business necessity. (Jumaane v. City of Los Angeles (2015)
241 Cal.App.4th 1390, 1405 [194 Cal.Rptr.3d 689].)
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).)
The court should consider instructing the jury on the meaning of “adverse impact,”
tailored to the facts of the case and the applicable law.
Sources and Authority
• Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• Disparate Impact May Prove Age Discrimination. Government Code section
12941.1.
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• Justification for Disparate Impact. Cal. Code Regs., tit. 2, §§ 11010(b),
11017(a), (e).
• “Prohibited discrimination may . . . be found on a theory of disparate impact,
i.e., that regardless of motive, a facially neutral employer practice or policy,
bearing no manifest relationship to job requirements, in fact had a
disproportionate adverse effect on members of the protected class.” (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, fn. 20 [100 Cal.Rptr.2d 352,
8 P.3d 1089], internal citations omitted.)
• “A ‘disparate impact’ plaintiff . . . may prevail without proving intentional
discrimination . . . [However,] a disparate impact plaintiff ‘must not merely
prove circumstances raising an inference of discriminatory impact; he must
prove the discriminatory impact at issue.’ ” (Ibarbia v. Regents of the University
of California (1987) 191 Cal.App.3d 1318, 1329–1330 [237 Cal.Rptr. 92],
quoting Lowe v. City of Monrovia (9th Cir. 1985) 775 F.2d 998, 1004.)
• “ ‘To establish a prima facie case of discrimination, a plaintiff must show that
the facially neutral employment practice had a significantly discriminatory
impact. If that showing is made, the employer must then demonstrate that “any
given requirement [has] a manifest relationship to the employment in question,”
in order to avoid a finding of discrimination . . . Even in such a case, however,
the plaintiff may prevail, if he shows that the employer was using the practice
as a mere pretext for discrimination.’ ” (City and County of San Francisco v.
Fair Employment and Housing Com. (1987) 191 Cal.App.3d 976, 985 [236
Cal.Rptr. 716], quoting Connecticut v. Teal (1982) 457 U.S. 440, 446–447 [102
S.Ct. 2525, 73 L.Ed.2d 130], internal citation omitted.)
• “It is well settled that valid statistical evidence is required to prove disparate
impact discrimination, that is, that a facially neutral policy has caused a
protected group to suffer adverse effects. ‘ “Once the employment practice at
issue has been identified, causation must be proved; that is, the plaintiff must
offer statistical evidence of a kind and degree sufficient to show that the
practice in question has caused the exclusion of applicants for jobs or
promotions because of their membership in a protected group. . . . [S]tatistical
disparities must be sufficiently substantial that they raise such an inference of
causation.” ’ ” (Jumaane, supra, 241 Cal.App.4th at p. 1405.)
• Under federal title VII, a plaintiff may establish an unlawful employment
practice based on disparate impact in one of two ways: (1) the plaintiff
demonstrates that a defendant uses a particular employment practice that causes
a disparate impact on the basis of a protected status, and the defendant “fails to
demonstrate that the challenged practice is job related for the position in
question and consistent with business necessity”; or (2) the plaintiff
demonstrates that there is an alternative employment practice with less adverse
impact, and the defendant “refuses to adopt such alternative employment
practice.” (42 U.S.C. § 2000e-2(k)(1)(A).)
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Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-A,
Employment Presumed At Will, ¶ 4:25 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:530, 7:531, 7:535
(The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.65
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.21 (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[2][c] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.23[4] (Matthew Bender)
California Civil Practice: Employment Litigation, § 2:23 (Thomson Reuters)
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