California Civil Jury Instructions (CACI) (2017)

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

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2521B.Hostile Work Environment Harassment—Conduct
Directed at Others—Essential Factual Elements—Employer or
Entity Defendant (Gov. Code, § 12940(j))
[Name of plaintiff] claims that [he/she] was subjected to a hostile or
abusive work environment because coworkers at [name of defendant]
were subjected to harassment based on [describe protected status, e.g.,
race, gender, or age]. 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], although not personally subjected to
unwanted harassing conduct, personally witnessed harassing
conduct that took place in [his/her] immediate work
3. That the harassing conduct was severe or pervasive;
4. That a reasonable [describe member of protected group, 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 toward [e.g., women];
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/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 if the plaintiff was
not the target of the harassing conduct and 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. 2522B, Hostile Work Environment
Harassment—Conduct Directed at Others—Essential Factual Elements—Individual
Defendant. For a case in which the plaintiff is the target of the harassment, see
CACI No. 2521A, Hostile Work Environment Harassment—Conduct Directed at
Plaintiff—Essential Factual Elements—Employer or Entity Defendant. For an
instruction for use if the hostile environment is due to widespread 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.
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
• 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).
• “The plaintiff’s work environment is affected not only by conduct directed at
herself but also by the treatment of others. A woman’s perception that her work
environment is hostile to women will obviously be reinforced if she witnesses
the harassment of other female workers.” (Beyda v. City of Los Angeles (1998)
65 Cal.App.4th 511, 519 [76 Cal.Rptr.2d 547], internal citations omitted.)
• “Harassment against others in the workplace is only relevant to the plaintiff’s
case if she has personal knowledge of it. Unless plaintiff witnesses the conduct
against others, or is otherwise aware of it, that conduct cannot alter the
conditions of her employment and create an abusive working environment.
Stated another way, a reasonable person in plaintiff’s position would not find
the environment hostile or abusive unless that person had knowledge of the
objectionable conduct toward others.” (Beyda, supra, 65 Cal.App.4th at p. 520.)
• “To state that an employee must be the direct victim of the sexually harassing
conduct is somewhat misleading as an employee who is subjected to a hostile
work environment is a victim of sexual harassment even though no offensive
remarks or touchings are directed to or perpetrated upon that employee.
Generally, however, sexual conduct that involves or is aimed at persons other
than the plaintiff is considered less offensive and severe than conduct that is
directed at the plaintiff. A hostile work environment sexual harassment claim by
a plaintiff who was not personally subjected to offensive remarks and touchings
requires ‘an even higher showing’ than a claim by one who had been sexually
harassed without suffering tangible job detriment: such a plaintiff must
‘establish that the sexually harassing conduct permeated [her] direct work
environment.’ [¶] To meet this burden, the plaintiff generally must show that the
harassment directed at others was in her immediate work environment, and that
she personally witnessed it. The reason for this is obvious: if the plaintiff does
not witness the incidents involving others, ‘those incidents cannot affect . . .
her perception of the hostility of the work environment.’ ” (Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 284–285 [42 Cal.Rptr.3d
2, 132 P.3d 211], internal citations omitted.)
• “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
• “[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.)
• “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, supra, 38 Cal.4th
at p. 284, internal citations omitted.)
• “[U]nder the FEHA, an 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, 1041 [6 Cal.Rptr.3d 441, 79 P.3d 556], original italics.)
• “[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].)
• “In order to be actionable, it must be shown that respondents knew, or should
have known, of the alleged harassment and failed to take appropriate action.”
(McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 294 [156
Cal.Rptr.3d 851].)
• “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.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 340, 346
Chin et al., Cal. 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,
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew
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)