CACI No. 2524. “Severe or Pervasive” Explained

Judicial Council of California Civil Jury Instructions (2020 edition)

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2524.“Severe or Pervasive” Explained
“Severe or pervasive” means conduct that alters the conditions of
employment and creates a work environment that is hostile, intimidating,
offensive, oppressive, or abusive.
In determining whether the conduct was severe or pervasive, you should
consider all the circumstances, including any or all of the following:
(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.
[Name of plaintiff] does not have to prove that [his/her/nonbinary pronoun]
productivity has declined. It is sufficient to prove that a reasonable
person who was subjected to the harassing conduct would find that the
conduct so altered working conditions as to make it more difficult to do
the job.
[A single incident can be sufficiently severe or pervasive to constitute
harassment.]
New September 2003; Revised December 2007, July 2019
Directions for Use
Read this instruction with any of the Work Environment Harassment instructions
(CACI Nos. 2521A, 2521B, 2521C, 2522A, 2522B, and 2522C). Read also CACI
No. 2523, “Harassing Conduct” Explained. Give the last optional sentence if a
single incident forms the basis of the claim. (See Gov. Code, § 12923(b) [single
incident of harassing conduct can be sufficient to create a triable issue regarding the
existence of a hostile work environment].)
In determining what constitutes “sufficiently pervasive” harassment, the courts have
held that acts of harassment cannot be occasional, isolated, sporadic, or trivial. (See
Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610 [262
Cal.Rptr. 842].) Whether this limitation remains in light of Government Code
section 12923 is not clear.
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
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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.)
• “[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], Ginsburg, J., concurring; see Gov.
Code, § 12923(a) endorsing this language as reflective of California law.)
• “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.)
• “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
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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.)
• “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.’ ” (Jones v. Department of Corrections & Rehabilitation
(2007) 152 Cal.App.4th 1367, 1377 [62 Cal.Rptr.3d 200], internal citations
omitted.)
• “[T]he jury only needed to find the harassing conduct to be either severe or
pervasive . . . .” (Caldera v. Department of Corrections & Rehabilitation (2018)
25 Cal.App.5th 31, 40 [235 Cal.Rptr.3d 262].)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 363, 370
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 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)
California Civil Practice: Employment Litigation, § 2:56 (Thomson Reuters)
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