California Civil Jury Instructions (CACI)

2505. Retaliation (Gov. Code, § 12940(h))

[Name of plaintiff] claims that [name of defendant] retaliated against [him/her] for [describe activity protected by the FEHA]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] [describe protected activity];

2. That [name of defendant] [discharged/demoted/[other adverse employment action]] [name of plaintiff];

3. That [name of plaintiff]'s [describe protected activity] was a motivating reason for [name of defendant]'s decision to [discharge/demote/[other adverse employment action]] [name of plaintiff];

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

5. That [name of defendant]'s retaliatory conduct was a substantial factor in causing [name of plaintiff]'s harm.

Directions for Use

This instruction must be modified to describe the protected activity in question. Government Code section 12940(h) provides that it is unlawful to retaliate against a person "because the person has opposed any practices forbidden under [Government Code sections 12900 through 12966] or because the person has filed a complaint, testified, or assisted in any proceeding under [the FEHA]."

Sources and Authority

Government Code section 12940(h) provides that it is an unlawful employment practice "[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part."

The FEHA defines a "person" as "one or more individuals, partnerships, associations, corporations, limited liability companies, legal representatives, trustees, trustees in bankruptcy, and receivers or other fiduciaries." (Gov. Code, § 12925(d).)

The Fair Employment and Housing Commission's regulations provide: "It is unlawful for an employer or other covered entity to demote, suspend, reduce, fail to hire or consider for hire, fail to give equal consideration in making employment decisions, fail to treat impartially in the context of any recommendations for subsequent employment which the employer or other covered entity may make, adversely affect working conditions or otherwise deny any employment benefit to an individual because that individual has opposed practices prohibited by the Act or has filed a complaint, testified, assisted or participated in any manner in an investigation, proceeding, or hearing conducted by the Commission or Department or their staffs." (Cal. Code Regs., tit. 2, § 7287.8(a).)

"To establish a prima facie case of retaliation, 'the plaintiff must show that he engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer's action.' " (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814 [89 Cal.Rptr.2d 505], quoting Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476 [4 Cal.Rptr.2d 522].)

"The employment action must be both detrimental and substantial . . . . We must analyze [plaintiff's] complaints of adverse employment actions to determine if they result in a material change in the terms of her employment, impair her employment in some cognizable manner, or show some other employment injury . . . . [W]e do not find that [plaintiff's] complaint alleges the necessary material changes in the terms of her employment to cause employment injury. Most of the actions upon which she relies were one time events . . . . The other allegations . . . are not accompanied by facts which evidence both a substantial and detrimental effect on her employment." (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511-512 [91 Cal.Rptr.2d 770], internal citations omitted.)

"The retaliatory motive is 'proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter.' 'The causal link may be established by an inference derived from circumstantial evidence, "such as the employer's knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision [citation]." ' " (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615 [262 Cal.Rptr. 842], internal citations omitted.)

"We . . . conclude a supervisor is a 'person' subject to liability under FEHA . . . . As to supervisors, we conclude the language of FEHA is unambiguous in imposing personal liability for harassment or retaliation in violation of FEHA." (Page v. Superior Court (1995) 31 Cal.App.4th 1206, 1208, 1212 [37 Cal.Rptr.2d 529].)

Secondary Sources

8 Witkin, Summary of California Law (9th ed. 1988) Constitutional Law, § 763, p. 265; id. (2002 supp.) at § 763, pp. 168-169

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 1993) Discrimination Claims, §§ 2.83-2.88, pp. 68-72; id. (2001 supp.) at §§ 2:84-2:88, pp. 89-96

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.131 (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.37, 115.94 (Matthew Bender)

Bancroft-Whitney's California Civil Practice: Employment Litigation (1993) Discrimination in Employment, §§ 2:70-2:71, pp. 90-92 (rel. 12/93); id. (2001 supp.) at §§ 2:70-2:71, pp. 78-81

(New September 2003)