CACI No. 2521C. Work Environment Harassment - Sexual Favoritism - 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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2521C.Work Environment Harassment - Sexual
Favoritism - 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 sexual favoritism at [name of defendant] and that
this harassment created a work environment that was hostile,
intimidating, offensive, oppressive, or abusive. “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 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 conduct to be hostile, intimidating, offensive,
oppressive, or abusive because of the sexual favoritism;
5. That [name of plaintiff] considered the conduct to be hostile,
intimidating, offensive, oppressive, or abusive because of the
sexual favoritism;
6. [Select applicable basis of defendant’s liability:]
6. [That a supervisor [engaged in the conduct/created the sexual
favoritism];]
6. [or]
6. [That [name of defendant] [or [his/her/nonbinary pronoun/its]
supervisors or agents] knew or should have known of the 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.
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Derived from former CACI No. 2521 December 2007; Revised December 2015, May
2018, July 2019, May 2020
Directions for Use
This instruction is for use in a hostile work environment case involving sexual
favoritism 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. 2522C, Work Environment Harassment - 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, 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, 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) 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. 2522C, Work Environment Harassment - Sexual Favoritism - 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].)
See also the Sources and Authority to CACI No. 2521A, Work Environment
Harassment - Conduct Directed at Plaintiff - Essential Factual Elements - Employer
or Entity Defendant.
Sources and Authority
• Declaration of 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).
• Person Providing Services Under Contract. Government Code section
12940(j)(5).
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• 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 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.)
• “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
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 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
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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 Dept. of Health Servs.,
supra, 31 Cal.4th at pp. 1040-1041, original italics.)
• “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 Servs.,supra, 31
Cal.4th at p. 1041, 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
4 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
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
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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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