CACI No. 2522C. Work Environment Harassment - Sexual Favoritism - Essential Factual Elements - Individual Defendant (Gov. Code, §§ 12923, 12940(j))
Judicial Council of California Civil Jury Instructions (2024 edition)
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2522C.Work Environment Harassment - Sexual
Favoritism - Essential Factual Elements - Individual Defendant
(Gov. Code, §§ 12923, 12940(j))
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was subjected to
harassment based on sexual favoritism at [name of covered entity] and
that this harassment created a work environment that was hostile,
intimidating, offensive, oppressive, or abusive. “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/an applicant for a
position with/a person providing services under a contract with/
an unpaid intern with/a volunteer with] [name of employer];
[2. That [name of individual defendant] was an employee of [name of
covered entity];]
3. That there was sexual favoritism in the work environment;
4. That the sexual favoritism was severe or pervasive;
5. 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 because of the sexual favoritism;
6. That [name of plaintiff] considered the work environment to be
hostile, intimidating, offensive, oppressive, or abusive because of
the sexual favoritism;
7. That [name of individual defendant] [participated in/assisted/ [or]
encouraged] the sexual favoritism;
8. That [name of plaintiff] was harmed; and
9. 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, May
2018, July 2019, May 2020, November 2021, May 2022
Directions for Use
This instruction is for use in a hostile work environment case involving sexual
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favoritism when the defendant is also an employee of the covered entity. (Gov.
Code, § 12940(j)(3).) Include optional element 2 if there is a dispute about the
defendant’s status as an employee and include optional question 2 on the verdict
form. See CACI No. VF-2507C, Work Environment Harassment - Sexual
Favoritism - Individual Defendant.
The relevant provision protects an employee, an applicant, an unpaid intern or
volunteer, or a person providing services under a contract. (Gov. Code,
§ 12940(j)(1).) If the facts of the case support it, the instruction should be modified
as appropriate to the applicant’s circumstances.
For an employer defendant, see CACI No. 2521C, Work Environment
Harassment - 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 orientation, see CACI No. 2522A,
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, 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.
If there are both employer and individual supervisor defendants (see CACI No.
2521C, Work Environment Harassment - Sexual Favoritism - 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
• Declaration of 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).
• Employee Personal Liability for Harassment. Government Code section
12940(j)(3).
• “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
CACI No. 2522C FAIR EMPLOYMENT AND HOUSING ACT
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• 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.)
• “[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.)
• “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].)
• “[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
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2522C
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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
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[5] (Matthew Bender)
California Civil Practice: Employment Litigation §§ 2:56, 2:56.50 (Thomson
Reuters)
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© Judicial Council of California.
