California Civil Jury Instructions (CACI)
2522. Hostile Work Environment Harassment - Essential Factual Elements—Individual Defendant (Gov. Code, § 12940(j))
[Name of plaintiff] claims that [name of defendant] subjected [him/ her] to harassment based on [describe protected status—for example, race, gender, or age], 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 [name of employer]/applied to [name of employer] for a job/was a person providing services pursuant to a contract with [name of employer]];
2. That [name of plaintiff] was subjected to unwanted harassing conduct because [he/she] [was/was believed to be/was associated with a person who was/was associated with a person who was believed to be] [protected status];
3. That the harassing conduct was so severe, widespread, or persistent that a reasonable [describe member of protected group] in [name of plaintiff]'s circumstances would have considered the work environment to be hostile or abusive;
4. That [name of plaintiff] considered the work environment to be hostile or abusive;
5. That [name of defendant] participated in the harassing conduct [or assisted or encouraged it];
6. That [name of plaintiff] was harmed; and
7. That the conduct was a substantial factor in causing [name of plaintiff]'s harm.
Sources and Authority
Government Code section 12940(j) provides that it is an unlawful employment practice for "an employer . . . or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, to harass an employee, an applicant, or person providing services pursuant to a contract. Harassment of an employee, an applicant, or a person providing services pursuant to a contract by an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment."
Government Code section 12940(j)(4)(A) provides, in part: "For purposes of this subdivision only, 'employer' means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities."
Government Code section 12940(j)(5) provides that for purposes of claims of harassment under the FEHA, "a person providing services pursuant to a contract" means a person who meets all of the following criteria:
(A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance.
(B) The person is customarily engaged in an independently established business.
(C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer's work.
"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.)
Government Code section 12940(j)(3), effective January 1, 2001, provides: "An employee of an entity . . . is personally liable for any arassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action."
"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.)
"[W]e conclude a nonharassing supervisor, who fails to take action to prevent sexual harassment, is not personally liable for sexual harassment under the Fair Employment and Housing Act (FEHA)." (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1322 [58 Cal.Rptr.2d 308].)
Government Code section 12940(i) provides that it is an unlawful employment practice "[f]or any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so."
"A supervisor who, without more, fails to take action to prevent sexual harassment of an employee is not personally liable as an aider and abettor of the harasser, an aider and abettor of the employer or an agent of the employer." (Fiol, supra, 50 Cal.App.4th at p. 1331.)
"[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.)
Government Code section 12926(m) provides: " 'Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation' includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics."
2 Witkin, Summary of California Law (9th ed. 1988) Agency and Employment, § 310, pp. 304-305; id. (2002 supp.) at § 310, pp. 301-302
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 2000) Discrimination Claims, §§ 2.68, 2.75, pp. 56, 60; id., Sexual Harassment, at §§ 3.1, 3.17, 3.36, pp. 116, 125-126, 140-141
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.80[a], 41.81[b] (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[g][i] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.36 (Matthew Bender)
Bancroft-Whitney's California Civil Practice: Employment Litigation (1993) Discrimination in Employment, §§ 2.51, 2.53, pp. 68-70, 72-75 (rel. 12/93); id. (2001 supp.) at §§ 2.51, 2.53, pp. 61-66, 69-73
(New September 2003)