California Civil Jury Instructions (CACI) (2017)

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

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2522B.Hostile Work Environment Harassment—Conduct
Directed at Others—Essential Factual Elements—Individual
Defendant (Gov. Code, § 12940(j))
[Name of plaintiff] claims that [he/she] was subjected to a hostile or
abusive work environment because coworkers at [name of employer]
were subjected to harassment based on [describe protected status, e.g.,
race, gender, or age]. 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] although not personally subjected to
unwanted harassing conduct, personally witnessed harassing
conduct that took place in [his/her] immediate work
environment;
3. That the harassing conduct 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 work environment to be hostile or abusive;
5. That [name of plaintiff] considered the work environment to be
hostile or abusive toward [e.g., women];
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
not 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. 2521B, Hostile Work Environment Harassment—Conduct Directed at
Others—Essential Factual Elements—Employer or Entity Defendant. For a case in
which the plaintiff is the target of the harassment, see CACI No. 2522A, Hostile
Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual
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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
Elements—Individual Defendant. Also read CACI No. 2523, “Harassing Conduct”
Explained, and CACI No. 2524, “Severe or Pervasive” Explained.
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 plaintiff’s work environment is affected not only by conduct directed at
herself but also by the treatment of others. A woman’s perception that her work
environment is hostile to women will obviously be reinforced if she witnesses
the harassment of other female workers.” (Beyda v. City of Los Angeles (1998)
65 Cal.App.4th 511, 519 [76 Cal.Rptr.2d 547], internal citations omitted.)
• “Harassment against others in the workplace is only relevant to the plaintiff’s
case if she has personal knowledge of it. Unless plaintiff witnesses the conduct
against others, or is otherwise aware of it, that conduct cannot alter the
conditions of her employment and create an abusive working environment.
Stated another way, a reasonable person in plaintiff’s position would not find
the environment hostile or abusive unless that person had knowledge of the
objectionable conduct toward others.” (Beyda, supra, 65 Cal.App.4th at p. 520.)
• “To state that an employee must be the direct victim of the sexually harassing
conduct is somewhat misleading as an employee who is subjected to a hostile
work environment is a victim of sexual harassment even though no offensive
remarks or touchings are directed to or perpetrated upon that employee.
Generally, however, sexual conduct that involves or is aimed at persons other
than the plaintiff is considered less offensive and severe than conduct that is
directed at the plaintiff. A hostile work environment sexual harassment claim by
a plaintiff who was not personally subjected to offensive remarks and touchings
requires ‘an even higher showing’ than a claim by one who had been sexually
harassed without suffering tangible job detriment: such a plaintiff must
‘establish that the sexually harassing conduct permeated [her] direct work
environment.’ [¶] To meet this burden, the plaintiff generally must show that the
harassment directed at others was in her immediate work environment, and that
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she personally witnessed it. The reason for this is obvious: if the plaintiff does
not witness the incidents involving others, ‘those incidents cannot affect . . .
her perception of the hostility of the work environment.’ ” (Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 284–285 [42 Cal.Rptr.3d
2, 132 P.3d 211], internal citations omitted.)
• “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.)
• “[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].)
• “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.)
• “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, supra, 38 Cal.4th
at p. 284, 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
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plaintiff.” (McGinest v. GTE Serv. Corp. (9th Cir. 2004) 360 F.3d 1103, 1115.)
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, 2:56.50 (Thomson
Reuters)
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