California Civil Jury Instructions (CACI) (2017)

2522a. Hostile Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Individual Defendant (Gov. Code, § 12940(j))

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2522A.Hostile Work Environment Harassment—Conduct
Directed at Plaintiff—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, e.g., 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/a person providing
services under a contract with/an unpaid intern with/a volunteer
with] [name of employer];
2. That [name of plaintiff] was subjected to unwanted harassing
conduct because [he/she] 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 or abusive;
5. That [name of plaintiff] considered the work environment to be
hostile or abusive;
6. That [name of defendant] [participated in/assisted/ [or]
encouraged] the harassing conduct;
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. 2522 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
the target of the harassing conduct and the defendant is an individual such as the
alleged harasser or plaintiff’s coworker. For an employer defendant, see CACI No.
2521A, Hostile Work Environment Harassment—Conduct Directed at
Plaintiff—Essential Factual Elements—Employer or Entity Defendant. For a case in
which the plaintiff is not the target of the harassment, see CACI No. 2522B,
Hostile Work Environment Harassment—Conduct Directed at Others—Essential
Factual Elements—Individual Defendant. For an instruction for use if the hostile
environment is due to sexual favoritism, see CACI No. 2522C, Hostile Work
Environment Harassment—Widespread Sexual Favoritism—Essential Factual
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Elements—Individual 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 he or she 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).)
Sources and Authority
• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• Personal Liability for Harassment. Government Code section 12940(j)(3).
• “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).
• 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.)
• “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.)
• “Under FEHA, an employee who harasses another employee may be held
personally liable.” (Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1524
[169 Cal.Rptr.3d 794].)
• “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 v. Doellstedt (1996) 50 Cal.App.4th 1318, 1331 [58 Cal.Rptr.2d 308].)
• “[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
CACI No. 2522A FAIR EMPLOYMENT AND HOUSING ACT
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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.)
• “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.)
• “[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.)
• “[A] cause of action for sexual harassment in violation of Government Code
section 12940, subdivision (h) may be stated by a member of the same sex as
the harasser . . . .” (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409,
1418 [26 Cal.Rptr.2d 116].)
• “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,supra, 224 Cal.App.4th at p. 1525,
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
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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.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 340, 346
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, 3.36–3.45
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 §§ 2:56–2:56.1 (Thomson
Reuters)
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