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

Judicial Council of California Civil Jury Instructions (2020 edition)

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2522B.Work Environment Harassment - Conduct Directed at
Others - Essential Factual Elements - Individual Defendant (Gov.
Code, §§ 12923, 12940(j))
[Name of plaintiff] claims that coworkers at [name of employer] were
subjected to harassment based on [describe protected status, e.g., race,
gender, or age] and that this harassment created a work environment for
[name of plaintiff] 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], although not personally subjected to
harassing conduct, personally witnessed harassing conduct that
took place in [his/her/nonbinary pronoun] 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, intimidating,
offensive, oppressive, or abusive;
5. That [name of plaintiff] considered the work environment to be
hostile, intimidating, offensive, oppressive, 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, May 2018, July 2019
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, Work Environment Harassment - Conduct Directed at Others - Essential
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Factual Elements - Employer or Entity Defendant. For a case in which the plaintiff
is the target of the harassment, see CACI No. 2522A, Work Environment
Harassment - Conduct Directed at Plaintiff - Essential Factual Elements - Individual
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.
If there are both employer and individual supervisor defendants (see CACI No.
2521B, Work Environment Harassment - Conduct Directed at Others - 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
sex; (4) the harassment complained of was sufficiently pervasive so as to alter
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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.)
• “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 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.)
• “[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
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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.)
Secondary Sources
4 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)
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