California Civil Jury Instructions (CACI) (2017)

2521a. Hostile Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant (Gov. Code, § 12940(j))

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2521A.Hostile Work Environment Harassment—Conduct
Directed at Plaintiff—Essential Factual Elements—Employer or
Entity Defendant (Gov. Code, § 12940(j))
[Name of plaintiff] claims that [he/she] was subjected to harassment
based on [his/her] [describe protected status, e.g., race, gender, or age] at
[name of defendant], causing a hostile or abusive work environment. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] was [an employee of/a person providing
services under a contract with/an unpaid intern with/a volunteer
with] [name of defendant];
2. That [name of plaintiff] was subjected to unwanted harassing
conduct because [he/she] was [protected status, e.g., a woman];
3. That the harassing conduct was severe or pervasive;
4. That a reasonable [e.g., woman] in [name of plaintiff]’s
circumstances would have considered the work environment to
be hostile or abusive;
5. That [name of plaintiff] considered the work environment to be
hostile or abusive;
6. [Select applicable basis of defendant’s liability:]
6. [That a supervisor engaged in the conduct;]
6. [That [name of defendant] [or [his/her/its] supervisors or agents]
knew or should have known of the conduct and failed to take
immediate and appropriate corrective action;]
7. That [name of plaintiff] was harmed; and
8. That the conduct was a substantial factor in causing [name of
plaintiff]’s harm.
Derived from former CACI No. 2521 December 2007; Revised June 2013,
December 2015
Directions for Use
This instruction is for use in a hostile work environment case when the defendant
is an employer or other entity covered by the FEHA. For an individual defendant,
such as the alleged harasser or plaintiff’s coworker, see CACI No. 2522A, Hostile
Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual
Elements—Individual Defendant. For a case in which the plaintiff is not the target
of the harassment, see CACI No. 2521B, Hostile Work Environment
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Harassment—Conduct Directed at Others—Essential Factual Elements—Employer
or Entity Defendant. For an instruction for use if the hostile environment is due to
sexual favoritism, see CACI No. 2521C, Hostile Work Environment
Harassment—Widespread Sexual Favoritism—Essential Factual
Elements—Employer or Entity Defendant. Also read CACI No. 2523, “Harassing
Conduct” Explained, and CACI No. 2524, “Severe or Pervasive” Explained.
Modify element 2 if plaintiff was not actually a member of the protected class, but
alleges harassment because he or she was perceived to be a member, or associated
with someone who was or was perceived to be a member, of the protected class.
(See Gov. Code, § 12926(o).)
In element 6, select the applicable basis of employer liability: (a) vicarious liability
for a supervisor’s harassing conduct, or (b) the employer’s ratification of the
conduct. For a definition of “supervisor,” see CACI No. 2525,
Harassment—“Supervisor” Defined.
Sources and Authority
• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
• Person Providing Services Under Contract. Government Code section
12940(j)(5).
• Harassment Because of Sex. Government Code section 12940(j)(4)(C).
• Aiding and Abetting Fair Employment and Housing Act Violations. Government
Code section 12940(i).
• Perception and Association. Government Code section 12926(o).
• “[A]n employer is strictly liable for all acts of sexual harassment by a
supervisor.” (State Dep’t of Health Servs. v. Superior Court (2003) 31 Cal.4th
1026, 1042 [6 Cal.Rptr.3d 441, 79 P.3d 556].)
• “When the harasser is a nonsupervisory employee, employer liability turns on a
showing of negligence (that is, the employer knew or should have known of the
harassment and failed to take appropriate corrective action).” (Rehmani v.
Superior Court (2012) 204 Cal.App.4th 945, 952 [139 Cal.Rptr.3d 464].)
• “[I]n order for the employer to avoid strict liability for the supervisor’s actions
under the FEHA, the harassment must result from a completely private
relationship unconnected with the employment. Otherwise, the employer is
strictly liable for the supervisor’s actions regardless of whether the supervisor
was acting as the employer’s agent.” (Myers v. Trendwest Resorts, Inc. (2007)
148 Cal.App.4th 1403, 1421 [56 Cal.Rptr.3d 501].)
• 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, 658 [76 Cal.Rptr.2d 499, 957 P.2d 1333] [California Supreme Court
declined to express opinion whether “agent” language in the FEHA merely
CACI No. 2521A FAIR EMPLOYMENT AND HOUSING ACT
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incorporates respondeat superior principles or has some other meaning].)
• “The elements [of a prima facie claim of hostile-environment sexual
harassment] are: (1) plaintiff belongs to a protected group; (2) plaintiff was
subject to unwelcome sexual harassment; (3) the harassment complained of was
based on sex; (4) the harassment complained of was sufficiently pervasive so as
to alter the conditions of employment and create an abusive working
environment; and (5) respondeat superior.” (Fisher v. San Pedro Peninsula
Hospital (1989) 214 Cal.App.3d 590, 608 [262 Cal.Rptr. 842], footnote
omitted.)
• “[A]lthough no California cases have directly addressed racial harassment in the
workplace, the California courts have applied the federal threshold standard to
claims of sexual harassment and held that FEHA is violated when the
harassment was ‘sufficiently severe or pervasive to alter the conditions of the
victim’s employment.’ ” (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457,
464–465 [79 Cal.Rptr.2d 33], internal citations and footnote omitted.)
• “When the workplace is permeated with discriminatory intimidation, ridicule
and insult that is ‘sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment,’ the law is
violated.” (Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal.App.4th 397, 409
[27 Cal.Rptr.2d 457], internal citation omitted.)
• “[N]ot every utterance of a racial slur in the workplace violates the FEHA or
Title VII. As the United States Supreme Court has recognized in the context of
sexual harassment: ‘[N]ot all workplace conduct that may be described as
“harassment” affects a “term, condition, or privilege” of employment within the
meaning of Title VII. For sexual harassment to be actionable, it must be
sufficiently severe or pervasive “to alter the conditions of [the victim’s]
employment and create an abusive working environment.” ’ . . . ‘Conduct that
is not severe or pervasive enough to create an objectively hostile or abusive
work environment—an environment that a reasonable person would find hostile
or abusive—is beyond Title VII’s purview. Likewise, if the victim does not
subjectively perceive the environment to be abusive, the conduct has not
actually altered the conditions of the victim’s employment, and there is no Title
VII violation.’ . . . California courts have adopted the same standard in
evaluating claims under the FEHA.” (Aguilar v. Avis Rent A Car System, Inc.
(1999) 21 Cal.4th 121, 129–130 [87 Cal.Rptr.2d 132, 980 P.2d 846], internal
citations omitted.)
• “If an employee other than an agent or supervisor commits the harassment, and
the employer takes immediate and appropriate corrective action when it
becomes or reasonably should become aware of the conduct—for example,
when the victim or someone else informs the employer—there simply is no
‘unlawful employment practice’ that the FEHA governs.” (Carrisales v. Dept. of
Corrections (1999) 21 Cal.4th 1132, 1136 [90 Cal.Rptr.2d 804, 988 P.2d 1083],
called into doubt on other grounds by statute.)
• Under federal Title VII, an employer’s liability may be based on the conduct of
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an official “within the class of an employer organization’s officials who may be
treated as the organization’s proxy.” (Faragher v. City of Boca Raton (1998)
524 U.S. 775, 790 [118 S.Ct. 2275, 141 L.Ed.2d 662].)
• “To be actionable, ‘a sexually objectionable environment must be both
objectively and subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive to be so.’ That
means a plaintiff who subjectively perceives the workplace as hostile or abusive
will not prevail under the FEHA, if a reasonable person in the plaintiff’s
position, considering all the circumstances, would not share the same
perception. Likewise, a plaintiff who does not perceive the workplace as hostile
or abusive will not prevail, even if it objectively is so.” (Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 284 [42 Cal.Rptr.3d 2,
132 P.3d 211], internal citations omitted.)
• “[A]llegations of a racially hostile work-place must be assessed from the
perspective of a reasonable person belonging to the racial or ethnic group of the
plaintiff.” (McGinest v. GTE Serv. Corp. (9th Cir. 2004) 360 F.3d 1103, 1115.)
• “Under . . . FEHA, sexual harassment can occur between members of the same
gender as long as the plaintiff can establish the harassment amounted to
discrimination because of sex.” (Lewis v. City of Benicia (2014) 224
Cal.App.4th 1519, 1525 [169 Cal.Rptr.3d 794], original italics.)
• “[T]here is no requirement that the motive behind the sexual harassment must
be sexual in nature. ‘[H]arassing conduct need not be motivated by sexual
desire to support an inference of discrimination on the basis of sex.’ Sexual
harassment occurs when, as is alleged in this case, sex is used as a weapon to
create a hostile work environment.” (Singleton v. United States Gypsum Co.
(2006) 140 Cal.App.4th 1547, 1564 [45 Cal.Rptr.3d 597], original italics,
internal citation omitted.)
• “The plaintiff must show that the harassing conduct took place because of the
plaintiff’s sex, but need not show that the conduct was motivated by sexual
desire. For example, a female plaintiff can prevail by showing that the
harassment was because of the defendant’s bias against women; she need not
show that it was because of the defendant’s sexual interest in women. In every
case, however, the plaintiff must show a discriminatory intent or motivation
based on gender.” (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 114 [129
Cal.Rptr.3d 384], internal citations omitted.)
• “[A] heterosexual male is subjected to harassment because of sex under the
FEHA when attacks on his heterosexual identity are used as a tool of
harassment in the workplace, irrespective of whether the attacks are motivated
by sexual desire or interest.” (Taylor v. Nabors Drilling USA, LP (2014) 222
Cal.App.4th 1228, 1239–1240 [166 Cal.Rptr.3d 676].)
• “A recent legislative amendment modifies section 12940, subdivision (j)(4)(C)
(a provision of FEHA specifying types of conduct that constitute harassment
because of sex) to read: ‘For purposes of this subdivision, “harassment” because
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of sex includes sexual harassment, gender harassment, and harassment based on
pregnancy, childbirth, or related medical conditions. Sexually harassing conduct
need not be motivated by sexual desire.’ ” (Lewis,supra, 224 Cal.App.4th at p.
1527 fn. 8, original italics.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 340, 346
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, 10:110–10:260 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.21, 3.36,
3.45
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew
Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.36 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:56 (Thomson Reuters)
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