CACI No. 2521A. Work Environment Harassment - Conduct Directed at Plaintiff - Essential Factual Elements - Employer or Entity Defendant (Gov. Code, §§ 12923, 12940(j))

Judicial Council of California Civil Jury Instructions (2020 edition)

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2521A.Work Environment Harassment - Conduct Directed at
Plaintiff - Essential Factual Elements - Employer or Entity
Defendant (Gov. Code, §§ 12923, 12940(j))
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was subjected to
harassment based on [his/her/nonbinary pronoun][describe protected
status, e.g., race, gender, or age] at [name of defendant] and that this
harassment created a work environment that was hostile, intimidating,
offensive, oppressive, or abusive.
To establish this claim, [name of plaintiff] and that this harassment
created a work environment that was hostile, intimidating, offensive,
oppressive, or abusive.
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 harassing conduct
because [he/she/nonbinary pronoun] 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, intimidating, offensive, oppressive, or abusive;
5. That [name of plaintiff] considered the work environment to be
hostile, intimidating, offensive, oppressive, or abusive;
6. [Select applicable basis of defendant’s liability:]
6. [That a supervisor engaged in the conduct;]
6. [or]
6. [That [name of defendant] [or [his/her/nonbinary pronoun/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, May 2018, July 2019, May 2020
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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, 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, Work Environment 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, Work Environment Harassment - 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 the plaintiff 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) strict 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. If there are both employer and individual supervisor defendants (see CACI
No. 2522A, Work Environment Harassment - Conduct Directed at
Plaintiff - Essential Factual Elements - Individual Defendant) and both are found
liable, they are both jointly and severally liable for any damages. Comparative fault
and Proposition 51 do not apply to the employer’s strict liability for supervisor
harassment. (State Dep’t of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026,
1041-1042 [6 Cal.Rptr.3d 441, 79 P.3d 556]; see Bihun v. AT&T Information
Systems, Inc. (1993) 13 Cal.App.4th 976, 1000 [16 Cal.Rptr.2d 787], disapproved on
other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664
[25 Cal.Rptr.2d 109, 863 P.2d 179]; see also Rashtian v. BRAC-BH, Inc. (1992) 9
Cal.App.4th 1847, 1851 [12 Cal.Rptr.2d 411] [Proposition 51 cannot be applied to
those who are without fault and only have vicarious liability by virtue of some
statutory fiat].)
Sources and Authority
• Legislative Intent With Regard to Application of the Laws About Harassment.
Government Code section 12923.
• 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).
• Harassment Because of Sex. Government Code section 12940(j)(4)(C).
• Person Providing Services Under Contract. Government Code section
12940(j)(5).
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• Aiding and Abetting Fair Employment and Housing Act Violations. Government
Code section 12940(i).
• Perception and Association. Government Code section 12926(o).
• “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.)
• “[T]he adjudicator’s inquiry should center, dominantly, on whether the
discriminatory conduct has unreasonably interfered with the plaintiff’s work
performance. To show such interference, ‘the plaintiff need not prove that his or
her tangible productivity has declined as a result of the harassment.’ It suffices to
prove that a reasonable person subjected to the discriminatory conduct would
find, as the plaintiff did, that the harassment so altered working conditions as to
‘make it more difficult to do the job.’ ” (Harris v. Forklift Sys. (1993) 510 U.S.
17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J.; see Gov.
Code, § 12923(a) endorsing this language as reflective of California law.)
• “[A]n employer is strictly liable for all acts of sexual harassment by a
supervisor.” (State Dep’t of Health Servs.,supra, 31 Cal.4th at p. 1042.)
• “The applicable language of the FEHA does not suggest that an employer’s
liability for sexual harassment by a supervisor is constrained by principles of
agency law. Had the Legislature so intended, it would have used language in the
FEHA imposing the negligence standard of liability on acts of harassment by an
employee ‘other than an agent,’ ‘not acting as the employer’s agent,’ or ‘not
acting within the scope of an agency for the employer.’ By providing instead in
section 12940, subdivision (j)(1), that the negligence standard applies to acts of
harassment ‘by an employee other than an agent or supervisor’ (italics added),
the Legislature has indicated that all acts of harassment by a supervisor are to be
exempted from the negligence standard, whether or not the supervisor was then
acting as the employer’s agent, and that agency principles come into play only
when the harasser is not a supervisor. (State Dept. of Health Services,supra, 31
Cal.4th at p. 1041, original italics.)
• “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].)
• “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
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Corrections (1999) 21 Cal.4th 1132, 1136 [90 Cal.Rptr.2d 804, 988 P.2d 1083],
called into doubt on other grounds by statute.)
• “[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
incorporates respondeat superior principles or has some other meaning].)
• “Here, [defendant] was jointly liable with its employees on a respondeat superior
or vicarious liability theory on every cause of action in which it was named as a
defendant.” (Bihun,supra, 13 Cal.App.4th at p. 1000.)
• “The McDonnell Douglas burden-shifting framework does not apply to
[plaintiff]’s harassment claim either. Since ‘there is no possible justification for
harassment in the workplace,’ an employer cannot offer a legitimate
nondiscriminatory reason for it.” (Cornell v. Berkeley Tennis Club (2017) 18
Cal.App.5th 908, 927 [227 Cal.Rptr.3d 286].)
• “[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
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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.)
• “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.)
• “The stray remarks doctrine . . . allows a court to weigh and assess the remarks
in isolation, and to disregard the potentially damaging nature of discriminatory
remarks simply because they are made by ‘nondecisionmakers, or [made] by
decisionmakers unrelated to the decisional process.’ [Defendant] also argues that
ambiguous remarks are stray, irrelevant, prejudicial, and inadmissible. However,
‘the task of disambiguating ambiguous utterances is for trial, not for summary
judgment.’ Determining the weight of discriminatory or ambiguous remarks is a
role reserved for the jury.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 540-541
[113 Cal.Rptr.3d 327, 235 P.3d 988], internal citations omitted.)
• “[I]n reviewing the trial court’s grant of [defendant]’s summary judgment
motion, the Court of Appeal properly considered evidence of alleged
discriminatory comments made by decision makers and coworkers along with all
other evidence in the record.” (Reid, supra, 50 Cal.4th at p. 545.)
• “[M]any employment cases present issues of intent, and motive, and hostile
working environment, issues not determinable on paper. Such cases, we caution,
are rarely appropriate for disposition on summary judgment, however liberalized
it be.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286 [100
Cal.Rptr.3d 296].)
• “In contending that the ‘subjectively offensive’ element was not proven, a
defendant ‘will assert that a plaintiff consented to the conduct through active
participation in it, or was not injured because the plaintiff did not subjectively
find it abusive.’ [¶] [Evidence Code] Section 1106 limits the evidence the
defendant may use to support this assertion. It provides that ‘[i]n any civil action
alleging conduct which constitutes sexual harassment, sexual assault, or sexual
battery, opinion evidence, reputation evidence, and evidence of specific instances
of the plaintiff’s sexual conduct, or any of that evidence, is not admissible by the
defendant in order to prove consent by the plaintiff or the absence of injury to
the plaintiff . . . .’ This general rule is, however, subject to the exception that it
‘does not apply to evidence of the plaintiff’s sexual conduct with the alleged
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perpetrator.’ The term ‘sexual conduct’ within the meaning of section 1106 has
been broadly construed to include ‘all active or passive behavior (whether
statements or actions), that either directly or through reasonable inference
establishes a plaintiff’s willingness to engage in sexual activity,’ including ‘racy
banter, sexual horseplay, and statements concerning prior, proposed, or planned
sexual exploits.’ ” (Meeks v. AutoZone, Inc. (2018) 24 Cal.App.5th 855, 874 [235
Cal.Rptr.3d 161], 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
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.)
• “California courts have held so-called ‘me too’ evidence, that is, evidence of
gender bias against employees other than the plaintiff, may be admissible
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evidence in discrimination and harassment cases.” (Meeks, supra, 24 Cal.App.5th
at p. 871.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
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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