California Civil Jury Instructions (CACI) (2017)

2523. "Harassing Conduct" Explained

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2523.“Harassing Conduct” Explained
Harassing conduct may include, but is not limited to, [any of the
following:]
[a. Verbal harassment, such as obscene language, demeaning
comments, slurs, [or] threats [or] [describe other form of verbal
harassment];] [or]
[b. Physical harassment, such as unwanted touching, assault, or
physical interference with normal work or movement;] [or]
[c. Visual harassment, such as offensive posters, objects, cartoons, or
drawings;] [or]
[d. Unwanted sexual advances;] [or]
[e. [Describe other form of harassment if appropriate, e.g., derogatory,
unwanted, or offensive photographs, text messages, Internet
postings].]
New September 2003; Revised December 2007, December 2015
Directions for Use
Read this instruction with CACI No. 2521A, Hostile Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer
or Entity Defendant; CACI No. 2521B, Hostile Work Environment
Harassment—Conduct Directed at Others—Essential Factual Elements—Employer
or Entity Defendant; CACI No. 2522A, Hostile Work Environment
Harassment—Conduct Directed at Plaintiff—Essential Factual
Elements—Individual Defendant; or CACI No. 2522B, Hostile Work Environment
Harassment—Conduct Directed at Others—Essential Factual Elements—Individual
Defendant. Read also CACI No. 2524, “Severe or Pervasive” Explained, if
appropriate.
Sources and Authority
• Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
• “Harassment” Defined. Cal. Code Regs., tit. 2, § 11019(b)(2).
• “Harassment is distinguishable from discrimination under the FEHA.
‘[D]iscrimination refers to bias in the exercise of official actions on behalf of
the employer, and harassment refers to bias that is expressed or communicated
through interpersonal relations in the workplace.’ ” (Serri v. Santa Clara
University (2014) 226 Cal.App.4th 830, 869 [172 Cal.Rptr.3d 732].)
• “[H]arassment consists of a type of conduct not necessary for performance of a
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supervisory job. Instead, harassment consists of conduct outside the scope of
necessary job performance, conduct presumably engaged in for personal
gratification, because of meanness or bigotry, or for other personal motives.
Harassment is not conduct of a type necessary for management of the
employer’s business or performance of the supervisory employee’s job.” (Reno
v. Baird (1998) 18 Cal.4th 640, 645–646 [76 Cal.Rptr.2d 499, 957 P.2d 1333],
internal citations omitted.)
• “No supervisory employee needs to use slurs or derogatory drawings, to
physically interfere with freedom of movement, to engage in unwanted sexual
advances, etc., in order to carry out the legitimate objectives of personnel
management. Every supervisory employee can insulate himself or herself from
claims of harassment by refraining from such conduct.” (Serri,supra, 226
Cal.App.4th at p. 869.)
• “We conclude, therefore, that the Legislature intended that commonly necessary
personnel management actions such as hiring and firing, job or project
assignments, office or work station assignments, promotion or demotion,
performance evaluations, the provision of support, the assignment or
nonassignment of supervisory functions, deciding who will and who will not
attend meetings, deciding who will be laid off, and the like, do not come within
the meaning of harassment. These are actions of a type necessary to carry out
the duties of business and personnel management. These actions may
retrospectively be found discriminatory if based on improper motives, but in
that event the remedies provided by the FEHA are those for discrimination, not
harassment. Harassment, by contrast, consists of actions outside the scope of
job duties which are not of a type necessary to business and personnel
management. This significant distinction underlies the differential treatment of
harassment and discrimination in the FEHA.” (Reno, supra, 18 Cal.4th at pp.
646–647, internal citation omitted.)
• “[W]e can discern no reason why an employee who is the victim of
discrimination based on some official action of the employer cannot also be the
victim of harassment by a supervisor for abusive messages that create a hostile
working environment, and under the FEHA the employee would have two
separate claims of injury.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707
[101 Cal.Rptr.3d 773, 219 P.3d 749].)
• “Here, [plaintiff]’s discrimination claim sought compensation for official
employment actions that were motivated by improper bias. These discriminatory
actions included not only the termination itself but also official employment
actions that preceded the termination, such as the progressive disciplinary
warnings and the decision to assign [plaintiff] to answer the office telephones
during office parties. [Plaintiff]’s harassment claim, by contrast, sought
compensation for hostile social interactions in the workplace that affected the
workplace environment because of the offensive message they conveyed to
[plaintiff]. These harassing actions included [supervisor]’s demeaning comments
to [plaintiff] about her body odor and arm sores, [supervisor]’s refusal to
CACI No. 2523 FAIR EMPLOYMENT AND HOUSING ACT
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respond to [plaintiff]’s greetings, [supervisor]’s demeaning facial expressions
and gestures toward [plaintiff], and [supervisor]’s disparate treatment of
[plaintiff] in handing out small gifts. None of these events can fairly be
characterized as an official employment action. None involved [supervisor]’s
exercising the authority that [employer] had delegated to her so as to cause
[employer], in its corporate capacity, to take some action with respect to
[plaintiff]. Rather, these were events that were unrelated to [supervisor]’s
managerial role, engaged in for her own purposes.” (Roby, supra, 47 Cal.4th at
pp. 708–709, original italics, footnote omitted.)
• “[S]ome official employment actions done in furtherance of a supervisor’s
managerial role can also have a secondary effect of communicating a hostile
message. This occurs when the actions establish a widespread pattern of bias.
Here, some actions that [supervisor] took with respect to [plaintiff] are best
characterized as official employment actions rather than hostile social
interactions in the workplace, but they may have contributed to the hostile
message that [supervisor] was expressing to [plaintiff] in other, more explicit
ways. These would include [supervisor]’s shunning of [plaintiff] during staff
meetings, [supervisor]’s belittling of [plaintiff]’s job, and [supervisor]’s
reprimands of [plaintiff] in front of [plaintiff]’s coworkers. Moreover, acts of
discrimination can provide evidentiary support for a harassment claim by
establishing discriminatory animus on the part of the manager responsible for
the discrimination, thereby permitting the inference that rude comments or
behavior by that same manager were similarly motivated by discriminatory
animus.” (Roby, supra, 47 Cal.4th at p. 709.)
• “[A]busive conduct that is not facially sex specific can be grounds for a hostile
environment sexual harassment claim if it is inflicted because of gender, i.e., if
men and women are treated differently and the conduct is motivated by gender
bias.” (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 130 [129 Cal.Rptr.3d 384],
original italics.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual
Harassment,¶¶ 10:125–10:155 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual and
Other Harassment, §§ 3.13, 3.36
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.80[1][a][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)
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2523
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