California Civil Jury Instructions (CACI) (2017)

2522c. Hostile Work Environment Harassment—Widespread Sexual Favoritism—Essential Factual Elements—Individual Defendant (Gov. Code, § 12940(j))

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2522C.Hostile Work Environment Harassment—Widespread
Sexual Favoritism—Essential Factual Elements—Individual
Defendant (Gov. Code, § 12940(j))
[Name of plaintiff] claims that widespread sexual favoritism by [name of
defendant] created a hostile or abusive work environment. “Sexual
favoritism” means that another employee has received preferential
treatment with regard to promotion, work hours, assignments, or other
significant employment benefits or opportunities because of a sexual
relationship with an individual representative of the employer who was
in a position to grant these preferences. 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 there was sexual favoritism in the work environment;
3. That the sexual favoritism was widespread and also 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
because of the widespread sexual favoritism;
5. That [name of plaintiff] considered the work environment to be
hostile or abusive because of the widespread sexual favoritism;
6. That [name of defendant] [participated in/assisted/ [or]
encouraged] the sexual favoritism;
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 December 2015
Directions for Use
This instruction is for use in a hostile work environment case involving widespread
sexual favoritism when the defendant is an individual such as the alleged harasser
or plaintiff’s coworker. For an employer defendant, see CACI No. 2521C, Hostile
Work Environment Harassment—Widespread Sexual Favoritism—Essential Factual
Elements—Employer or Entity Defendant. For a case in which the plaintiff is the
target of harassment based on a protected status such as gender, race, or sexual
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orientation, see CACI No. 2522A, Hostile Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual
Elements—Individual Defendant. For an instruction for use if 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. 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).
• “Following the guidance of the EEOC, and also employing standards adopted in
our prior cases, we believe that an employee may establish an actionable claim
of sexual harassment under the FEHA by demonstrating that widespread sexual
favoritism was severe or pervasive enough to alter his or her working
conditions and create a hostile work environment.” (Miller v. Dept. of
Corrections (2005) 36 Cal.4th 446, 466 [30 Cal.Rptr.3d 797, 115 P.3d 77],
internal citations omitted.)
• “[S]exual favoritism by a manager may be actionable when it leads employees
to believe that ‘they [can] obtain favorable treatment from [the manager] if they
became romantically involved with him’, the affair is conducted in a manner ‘so
indiscreet as to create a hostile work environment,’ or the manager has engaged
in ‘other pervasive conduct . . . which created a hostile work environment.’ ”
(Miller, supra, 36 Cal.4th at p. 465, internal citations omitted.)
• “[A] romantic relationship between a supervisor and an employee does not,
without more, give rise to a sexual discrimination or sexual harassment claim
either under the FEHA or the public policy of the state.” (Proksel v. Gattis
(1996) 41 Cal.App.4th 1626, 1631 [49 Cal.Rptr.2d 322].)
• “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
CACI No. 2522C FAIR EMPLOYMENT AND HOUSING ACT
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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 v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 284 [42 Cal.Rptr.3d 2,
132 P.3d 211], internal citations omitted.)
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
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2522C
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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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