California Civil Jury Instructions (CACI)
2520. Quid pro quo Sexual Harassment - Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] subjected [him/ her] to sexual harassment. To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [was an employee of [name of defendant]/applied to [name of defendant] for a job/was a person providing services pursuant to a contract with [name of defendant]];
2. That [name of alleged harasser] made unwanted sexual advances to [name of plaintiff] or engaged in other unwanted verbal or physical conduct of a sexual nature;
3. [That job benefits were conditioned, by words or conduct, on [name of plaintiff]'s acceptance of [name of alleged harasser]'s sexual advances or conduct;]
[That employment decisions affecting [name of plaintiff] were made based on [his/her] acceptance or rejection of [name of alleged harasser]'s sexual advances or conduct;]
4. That at the time of [his/her] conduct, [name of alleged harasser] was a supervisor or agent for [name of defendant];
5. That [name of plaintiff] was harmed; and 6. That [name of alleged harasser]'s conduct was a substantial factor in causing [name of plaintiff]'s harm.
Directions for Use
Employers may be liable for the conduct of certain agents (see Gov. Code §§ 12925(d), 12926(d), and 12940(j)(1), and Reno v. Baird (1998) 18 Cal.4th 640, 648 [76 Cal.Rptr.2d 499, 957 P.2d 1333] [California Supreme Court declined to express opinion whether "agent" language in the FEHA merely incorporates respondeat superior principles or has some other meaning]).
Sources and Authority
Government Code section 12940(j) provides that it is an unlawful employment practice for "an employer . . . or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, to harass an employee, an applicant, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, or a person providing services pursuant to a contract by an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment."
Government Code section 12940(j)(4)(A) provides that for purposes of claims of harassment under the FEHA, " 'employer' means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities." (Gov. Code, § 12940(j)(4)(A).)
Government Code section 12940(j)(5) provides that for purposes of claims of harassment under the FEHA, "a person providing services pursuant to a contract" means a person who meets all of the following criteria:
(A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance.
(B) The person is customarily engaged in an independently established business.
(C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer's work.
The Fair Employment and Housing Commission's regulations provide: "Sexual harassment is unlawful as defined in Section 7287.6(b), and includes verbal, physical, and visual harassment, as well as unwanted sexual advances." (Cal. Code Regs., tit. 1, § 7291.1(f)(1).)
"Courts have generally recognized two distinct categories of sexual harassment claims: quid pro quo and hostile work environment. Quid pro quo harassment occurs when submission to sexual conduct is made a condition of concrete employment benefits." (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607 [262 Cal.Rptr. 842], internal citation omitted.)
"A cause of action for quid pro quo harassment involves the behavior most commonly regarded as sexual harassment, including, e.g., sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee's body and the sexual uses to which it could be put. To state a cause of action on this theory, it is sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor's unwelcome sexual advances." (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414 [26 Cal.Rptr.2d 116], internal citations omitted.)
"Cases based on threats which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment. The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility . . . [¶] We do not suggest the terms quid pro quo and hostile work environment are irrelevant to Title VII litigation. To the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII. When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive." (Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 751, 753-754 [118 S.Ct. 2257, 141 L.Ed.2d 633].)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 2000) Sexual Harassment, §§ 3.14, 3.31-3.35, pp. 123-124, 136-140
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.81[a], 41.81 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.36[b] (Matthew Bender)
Bancroft-Whitney's California Civil Practice: Employment Litigation (1993) Discrimination in Employment, § 2.52, pp. 71-72 (rel. 12/93); id. (2001 supp.) at § 2.52, pp. 67-69
(New September 2003)