California Civil Jury Instructions (CACI)

2524. "Hostile Work Environment" Explained

Harassing conduct does not create a hostile work environment if it is only occasional, isolated, or trivial. In determining whether the work environment was hostile or abusive, you should consider all the circumstances, including the following:

(a) The nature and severity of the conduct;

(b) How often, and over what period of time, the conduct occurred; and

(c) The circumstances under which the conduct occurred.

Sources and Authority

" 'For sexual harassment to be actionable, it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment." ' . . . [¶] 'Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation.' . . . California courts have adopted the same standard in evaluating claims under the FEHA." (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129- 130 [87 Cal.Rptr.2d 132, 980 P.2d 846], internal citations omitted.)

"Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended . . . . The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred." (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609-610 [262 Cal.Rptr. 842], internal citation omitted.)

"In determining what constitutes 'sufficiently pervasive' harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial[,] rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature." (Fisher, supra, 214 Cal.App.3d at p. 610.)

"The United States Supreme Court . . . has clarified that conduct need not seriously affect an employee's psychological well-being to be actionable as abusive work environment harassment. So long as the environment reasonably would be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious." (Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal.App.4th 397, 412 [27 Cal.Rptr.2d 457], internal citations omitted.)

"As the Supreme Court recently reiterated, in order 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.' The work environment must be viewed from the perspective of a reasonable person in the plaintiff's position, considering 'all the circumstances.' This determination requires judges and juries to exercise '[c]ommon sense, and an appropriate sensitivity to social context' in order to evaluate whether a reasonable person in the plaintiff's position would find the conduct severely hostile or abusive." (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 518-519 [76 Cal.Rptr.2d 547], internal citations omitted.)

"In the present case, the jury was instructed as follows: 'In order to find in favor of Plaintiff on his claim of race harassment, you must find that Plaintiff has proved by a preponderance of the evidence that the racial conduct complained of was sufficiently severe or pervasive to alter the conditions of employment. In order to find that racial harassment is "sufficiently severe or pervasive," the acts of racial harassment cannot be occasional, isolated, sporadic, or trivial.' . . . [W]e find no error in the jury instruction given here . . . . [T]he law requires the plaintiff to meet a threshold standard of severity or pervasiveness. We hold that the statement within the instruction that severe or pervasive conduct requires more than 'occasional, isolated, sporadic, or trivial' acts was an accurate statement of that threshold standard." (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 465-467 [79 Cal.Rptr.2d 33].)

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1988) Agency and Employment, § 310, pp. 304-305; id. (2002 supp.) at § 310, pp. 301-302

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 2000) Discrimination Claims, §§ 2.68 and 2.75, pp. 56, 60; id., Sexual Harassment, at §§ 3.1, 3.17, 3.36, pp. 116, 125-126, 140-141

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)

Bancroft-Whitney's California Civil Practice: Employment Litigation (1993) Discrimination in Employment, §§ 2.51, 2.53, pp. 68-70, 72-75 (rel. 12/93); id. (2001 supp.) at §§ 2.51, 2.53, pp. 61-66, 69-73

(New September 2003)