California Civil Jury Instructions (CACI) (2017)

2509. “Adverse Employment Action” Explained

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2509.“Adverse Employment Action” Explained
[Name of plaintiff] must prove that [he/she] was subjected to an adverse
employment action.
Adverse employment actions are not limited to ultimate actions such as
termination or demotion. There is an adverse employment action if
[name of defendant] has taken an action or engaged in a course or
pattern of conduct that, taken as a whole, materially and adversely
affected the terms, conditions, or privileges of [name of plaintiff]’s
employment. An adverse employment action includes conduct that is
reasonably likely to impair a reasonable employee’s job performance or
prospects for advancement or promotion. However, minor or trivial
actions or conduct that is not reasonably likely to do more than anger
or upset an employee cannot constitute an adverse employment action.
New June 2012
Directions for Use
Give this instruction with CACI No. 2500, Disparate Treatment—Essential Factual
Elements, CACI No. 2505, Retaliation, CACI No. 2540, Disability
Discrimination—Disparate Treatment—Essential Factual Elements, CACI No.
2560, Religious Creed Discrimination—Failure to Accommodate—Essential Factual
Elements, or CACI No. 2570, Age Discrimination—Disparate Treatment—Essential
Factual Elements, if there is an issue as to whether the employee was the victim of
an adverse employment action.
For example, the case may involve a pattern of employer harassment consisting of
acts that might not individually be sufficient to constitute discrimination or
retaliation, but taken as a whole establish prohibited conduct. (See Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052–1056 [32 Cal.Rptr.3d 436, 116
P.3d 1123].) Or the case may involve acts that, considered alone, would not appear
to be adverse, but could be adverse under the particular circumstances of the case.
(See Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378,
1389–1390 [37 Cal.Rptr.3d 113] [lateral transfer can be adverse employment action
even if wages, benefits, and duties remain the same].)
Sources and Authority
• “Appropriately viewed, [section 12940(a)] protects an employee against
unlawful discrimination with respect not only to so-called ultimate employment
actions such as termination or demotion, but also the entire spectrum of
employment actions that are reasonably likely to adversely and materially affect
an employee’s job performance or opportunity for advancement in his or her
career. Although a mere offensive utterance or even a pattern of social slights
by either the employer or coemployees cannot properly be viewed as materially
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affecting the terms, conditions, or privileges of employment for purposes of
section 12940(a) (or give rise to a claim under section 12940(h)), the phrase
‘terms, conditions, or privileges’ of employment must be interpreted liberally
and with a reasonable appreciation of the realities of the workplace in order to
afford employees the appropriate and generous protection against employment
discrimination that the FEHA was intended to provide.” (Yanowitz, supra, 36
Cal.4th at pp. 1053–1054, footnotes omitted.)
• “[T]he determination of what type of adverse treatment properly should be
considered discrimination in the terms, conditions, or privileges of employment
is not, by its nature, susceptible to a mathematically precise test, and the
significance of particular types of adverse actions must be evaluated by taking
into account the legitimate interests of both the employer and the employee.
Minor or relatively trivial adverse actions or conduct by employers or fellow
employees that, from an objective perspective, are reasonably likely to do no
more than anger or upset an employee cannot properly be viewed as materially
affecting the terms, conditions, or privileges of employment and are not
actionable, but adverse treatment that is reasonably likely to impair a reasonable
employee’s job performance or prospects for advancement or promotion falls
within the reach of the antidiscrimination provisions of sections 12940(a) and
12940(h).” (Yanowitz, supra, 36 Cal.4th at pp. 1054–1055.)
• “An ‘ “adverse employment action,” ’ . . . , requires a ‘substantial adverse
change in the terms and conditions of the plaintiff’s employment’. ” (Holmes v.
Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063 [119
Cal.Rptr.3d 878, internal citations omitted.)
• “Contrary to [defendant]’s assertion that it is improper to consider collectively
the alleged retaliatory acts, there is no requirement that an employer’s
retaliatory acts constitute one swift blow, rather than a series of subtle, yet
damaging, injuries. Enforcing a requirement that each act separately constitute
an adverse employment action would subvert the purpose and intent of the
statute.” (Yanowitz, supra, 36 Cal.4th at pp. 1055–1056, internal citations
omitted.)
• “Moreover, [defendant]’s actions had a substantial and material impact on the
conditions of employment. The refusal to promote [plaintiff] is an adverse
employment action under FEHA. There was also a pattern of conduct, the
totality of which constitutes an adverse employment action. This includes
undeserved negative job reviews, reductions in his staff, ignoring his health
concerns and acts which caused him substantial psychological harm.” (Wysinger
v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424 [69
Cal.Rptr.3d 1], internal citations omitted.)
• “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
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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 ‘materiality’ test of adverse employment action . . . looks to ‘the entire
spectrum of employment actions that are reasonably likely to adversely and
materially affect an employee’s job performance or opportunity for advancement
in his or her career,’ and the test ‘must be interpreted liberally . . . with a
reasonable appreciation of the realities of the workplace . . . .’ ” (Patten, supra,
134 Cal.App.4th at p. 1389.)
• “Mere ostracism in the workplace is insufficient to establish an adverse
employment decision. However, ‘ “[W]orkplace harassment, if sufficiently
severe or pervasive, may in and of itself constitute an adverse employment
action sufficient to satisfy the second prong of the prima facie case for . . .
retaliation cases.” [Citation].’ ” (Kelley v. The Conco Companies (2011) 196
Cal.App.4th 191, 212 [126 Cal.Rptr.3d 651], internal citations omitted.)
• “Not every change in the conditions of employment, however, constitutes an
adverse employment action. ‘ “A change that is merely contrary to the
employee’s interests or not to the employee’s liking is insufficient.” . . .’
‘[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is
displeased by an employer’s act or omission does not elevate that act or
omission to the level of a materially adverse employment action.’ ” (Malais v.
Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 357 [58 Cal.Rptr.3d
444].)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 11
8Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 940
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:203, 7:731, 7:785
(The Rutter Group)
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, § 115.36 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
Termination and Discipline, § 249.12 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.42 (Matthew Bender)
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