California Civil Jury Instructions (CACI) (2017)

2521c. Hostile Work Environment Harassment—Widespread Sexual Favoritism— Essential Factual Elements—Employer or Entity Defendant (Gov. Code, § 12940(j))

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2521C.Hostile Work Environment Harassment—Widespread
Sexual Favoritism—Essential Factual Elements—Employer or
Entity Defendant (Gov. Code, § 12940(j))
[Name of plaintiff] claims that widespread sexual favoritism at [name of
defendant] created a hostile or abusive work environment. “Sexual
favoritism” means that another employee has received preferential
treatment with regard to promotion, work hours, assignments, or other
significant employment benefits or opportunities because of a sexual
relationship with an individual representative of the employer who was
in a position to grant those preferences. 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 there was sexual favoritism in the work environment;
3. That the sexual favoritism was widespread and also 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 because of the widespread sexual favoritism;
6. [Select applicable basis of defendant’s liability:]
6. [That a supervisor [engaged in the conduct/created the
widespread sexual favoritism];]
6. [That [name of defendant] [or [his/her/its] supervisors or agents]
knew or should have known of the widespread sexual favoritism
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 December 2015
Directions for Use
This instruction is for use in a hostile work environment case involving widespread
sexual favoritism when the defendant is an employer or other entity covered by the
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FEHA. For an individual defendant, such as the alleged harasser or plaintiff’s
coworker, see CACI No. 2522C, Hostile Work Environment
Harassment—Widespread Sexual Favoritism—Essential Factual
Elements—Individual Defendant. For a case in which the plaintiff is the target of
harassment based on a protected status such as gender, race, or sexual orientation,
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 plaintiff is not the target of the harassment, see CACI No.
2521B, Hostile Work Environment Harassment—Conduct Directed at
Others—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
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).
• “Following the guidance of the EEOC, and also employing standards adopted in
our prior cases, we believe that an employee may establish an actionable claim
of sexual harassment under the FEHA by demonstrating that widespread sexual
favoritism was severe or pervasive enough to alter his or her working
conditions and create a hostile work environment.” (Miller v. Dept. of
Corrections (2005) 36 Cal.4th 446, 466 [30 Cal.Rptr.3d 797, 115 P.3d 77],
internal citations omitted.)
• “[S]exual favoritism by a manager may be actionable when it leads employees
to believe that ‘they [can] obtain favorable treatment from [the manager] if they
became romantically involved with him’, the affair is conducted in a manner ‘so
indiscreet as to create a hostile work environment,’ or the manager has engaged
in ‘other pervasive conduct . . . which created a hostile work environment.’ ”
(Miller, supra, 36 Cal.4th at p. 465, internal citations omitted.)
• “[A] romantic relationship between a supervisor and an employee does not,
without more, give rise to a sexual discrimination or sexual harassment claim
CACI No. 2521C FAIR EMPLOYMENT AND HOUSING ACT
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either under the FEHA or the public policy of the state.” (Proksel v. Gattis
(1996) 41 Cal.App.4th 1626, 1631 [49 Cal.Rptr.2d 322].)
• “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.)
• “ ‘[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, 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 FEHA imposes two standards of employer liability for sexual harassment,
depending on whether the person engaging in the harassment is the victim’s
supervisor or a nonsupervisory coemployee. The employer is liable for
harassment by a nonsupervisory employee only if the employer (a) knew or
should have known of the harassing conduct and (b) failed to take immediate
and appropriate corrective action. This is a negligence standard. Because the
FEHA imposes this negligence standard only for harassment ‘by an employee
other than an agent or supervisor’, by implication the FEHA makes the
employer strictly liable for harassment by a supervisor.” (State Dep’t of Health
Servs. v. Superior Court (2003) 31 Cal.4th 1026, 1040–1041 [6 Cal.Rptr.3d 441,
79 P.3d 556], original italics.)
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2521C
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• “[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,
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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