CACI No. 2522A. Work Environment Harassment - Conduct Directed at Plaintiff - Essential Factual Elements - Individual Defendant (Gov. Code, §§ 12923, 12940(j))

Judicial Council of California Civil Jury Instructions (2020 edition)

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2522A.Work Environment Harassment - Conduct Directed at
Plaintiff - Essential Factual Elements - Individual Defendant (Gov.
Code, §§ 12923, 12940(j))
[Name of plaintiff] claims that [name of defendant] subjected
[him/her/nonbinary pronoun] to harassment based on [describe protected
status, e.g., race, gender, or age] at [name of employer] and that this
harassment created a work environment that was hostile, intimidating,
offensive, oppressive, or abusive.
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 harassing conduct
because [he/she/nonbinary pronoun] 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, intimidating, offensive, oppressive, or abusive;
5. That [name of plaintiff] considered the work environment to be
hostile, intimidating, offensive, oppressive, 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, May 2018, July 2019, May 2020
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, 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, Work Environment
Harassment - Conduct Directed at Others - Essential Factual Elements - Individual
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Defendant. For an instruction for use if the hostile environment is due to sexual
favoritism, see CACI No. 2522C, Work Environment Harassment - Sexual
Favoritism - Essential Factual Elements - Individual Defendant. Also read CACI No.
2523, “Harassing Conduct” Explained, and CACI No. 2524, “Severe or Pervasive”
Explained.
Modify element 2 if the plaintiff was not actually a member of the protected class,
but alleges harassment because the plaintiff 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).)
If there are both employer and individual supervisor defendants (see CACI No.
2521A, Work Environment Harassment - Conduct Directed at Plaintiff - Essential
Factual Elements - Employer or Entity 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
• 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).
• 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
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2522A
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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.)
• “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].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
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 §§ 2:56-2:56.50 (Thomson
Reuters)
CACI No. 2522A FAIR EMPLOYMENT AND HOUSING ACT
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