California Civil Jury Instructions (CACI) (2017)

2520. Quid pro quo Sexual Harassment - Essential Factual Elements

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2520.Quid pro quo Sexual Harassment—Essential Factual
[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 terms of employment, job benefits, or favorable working
conditions were made contingent, by words or conduct, on [name
of plaintiff]’s acceptance 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.
New September 2003; Revised December 2015
Directions for Use
Employers may be liable for the conduct of certain agents. (See Gov. Code,
§§ 12925(d), 12926(d), 12940(j)(1); 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
• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• “Employer” Defined: Harassment. Government Code section 12940(j)(4)(A).
• “Person Providing Services Under Contract: Harassment. Government Code
section 12940(j)(5).
• Sexual Harassment. Cal. Code Regs., tit. 2, § 11034(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].)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:150, 7:166,
7:168–7:169, 7:194 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources
Of Law Prohibiting Harassment, ¶¶ 10:18–10:19, 10:22, 10:31 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment, ¶¶ 10:40, 10:50 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual
Harassment, §§ 3.31–3.35
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.81[1][a], [6] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36[5][b] (Matthew Bender)
California Civil Practice: Employment Litigation § 2:55 (Thomson Reuters)