California Civil Jury Instructions (CACI)

2525. Harassment - "Supervisor" Defined

[Name of alleged harasser] was a supervisor for [name of defendant] if [he/she] had the discretion and authority:

[a. To hire, direct, transfer, promote, assign, reward, discipline, [or] discharge [or] [insert other employment action] other employees [or effectively to recommend any of these actions];] [or]

[b. To act on the grievances of other employees or effectively to recommend action on grievances.]

Directions for Use

This instruction is intended for use only in a quid pro quo sexual harassment case brought under the Fair Employment and Housing Act.

Sources and Authority

Government Code section 12940(j) provides that it is an unlawful employment practice for "an employer . . . or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, to harass an employee, an applicant, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, or a person providing services pursuant to a contract by an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action."

Government Code section 12926(r) provides: " 'Supervisor' means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment."

"This section has been interpreted to mean that the employer is strictly liable for the harassing actions of its supervisors and agents, but that he employer is only liable for harassment by a coworker if the employer knew or should have known of the conduct and failed to take immediate corrective action. Thus, characterizing the employment status of the harasser is very significant." (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1046 [58 Cal.Rptr.2d 122], internal citations omitted.)

"The case and statutory authority set forth three clear rules. First, . . . a supervisor who personally engages in sexually harassing conduct is personally liable under the FEHA. Second, . . . if the supervisor participates in the sexual harassment or substantially assists or encourages continued harassment, the supervisor is personally liable under the FEHA as an aider and abettor of the harasser. Third, under the FEHA, the employer is vicariously and strictly liable for sexual harassment by a supervisor." (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1327 [58 Cal.Rptr.2d 308].)

"[W]hile an employer's liability under the [FEHA] for an act of sexual harassment committed by a supervisor or agent is broader than the liability created by the common law principle of respondeat superior, respondeat superior principles are nonetheless relevant in determining liability when, as here, the sexual harassment occurred away from the workplace and not during work hours." (Doe, supra, 50 Cal.App.4th at pp. 1048-1049.)

"The FEHA does not define 'agent.' Therefore, it is appropriate to consider general principles of agency law. An agent is one who represents a principal in dealings with third persons. An agent is a person authorized by the principal to conduct one or more transactions with one or more third persons and to exercise a degree of discretion in effecting the purpose of the principal. A supervising employee is an agent of the employer." (Fiol, supra, 50 Cal.App.4th at p. 1328, internal citations omitted.)

"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

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 2000) Sexual Harassment, § 3.21, pp. 128-129

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.81 (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.20, 115.36, 115.54 (Matthew Bender)

Bancroft-Whitney's California Civil Practice: Employment Litigation (1993) Discrimination in Employment, § 2.51, p. 69 (rel. 12/93); id. (2001 supp.) at § 2.51, pp. 62-63

(New September 2003)