California Civil Jury Instructions (CACI) (2017)

2524. "Hostile Work Environment" Explained

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2524.“Severe or Pervasive” Explained
“Severe or pervasive” means conduct that alters the conditions of
employment and creates a hostile or abusive work environment.
In determining whether the conduct was severe or pervasive, you should
consider all the circumstances. You may consider any or all of the
(a) The nature of the conduct;
(b) How often, and over what period of time, the conduct occurred;
(c) The circumstances under which the conduct occurred;
(d) Whether the conduct was physically threatening or humiliating;
(e) The extent to which the conduct unreasonably interfered with an
employee’s work performance.
New September 2003; Revised December 2007
Directions for Use
Read this instruction with any of the Hostile Work Environment Harassment
instructions (CACI Nos. 2521A, 2521B, 2521C, 2522A, 2522B, and 2522C). Read
also CACI No. 2523, “Harassing Conduct” Explained.
Sources and Authority
• “We have agreed with the United States Supreme Court that, to prevail, an
employee claiming harassment based upon a hostile work environment must
demonstrate that the conduct complained of was severe enough or sufficiently
pervasive to alter the conditions of employment and create a work environment
that qualifies as hostile or abusive to employees because of their sex. The
working environment must be evaluated in light of the totality of the
circumstances: ‘[W]hether an environment is “hostile” or “abusive” can be
determined only by looking at all the circumstances. These may include the
frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.’ ” (Miller v.
Dept. of Corrections (2005) 36 Cal.4th 446, 462 [30 Cal.Rptr.3d 797, 115 P.3d
77], internal citations omitted.)
• “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 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.
• “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
• “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.)
• “The requirement that the conduct be sufficiently severe or pervasive to create a
working environment a reasonable person would find hostile or abusive is a
crucial limitation that prevents sexual harassment law from being expanded into
a ‘general civility code.’ The conduct must be extreme: ‘ “simple teasing,” . . .
offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the “terms and conditions of
employment.” ’ ” (Jones v. Department of Corrections (2007) 152 Cal. App. 4th
1367, 1377 [62 Cal.Rptr. 3d 200], internal citations omitted.)
• “[E]mployment law acknowledges that an isolated incident of harassing conduct
may qualify as ‘severe’ when it consists of ‘a physical assault or the threat
thereof.’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1049 [95 Cal.Rptr.3d 636,
209 P.3d 963], original italics.)
• “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
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 340, 346
Chin, et al., California Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 10:160–10:249
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.17, 3.36–3.41
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew
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 (Thomson West) § 2:56