CACI No. 2525. Harassment - “Supervisor” Defined (Gov. Code, § 12926(t))

Judicial Council of California Civil Jury Instructions (2022 edition)

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2525.Harassment - “Supervisor” Defined (Gov. Code, § 12926(t))
[Name of alleged harasser] was a supervisor of [name of defendant] if [he/
she/nonbinary pronoun] had any of the following:
a. The authority to hire, transfer, promote, assign, reward,
discipline, [or] discharge [or] [insert other employment action]
[name of plaintiff] [or effectively to recommend any of these
b. The responsibility to act on [name of plaintiff]’s grievances [or
effectively to recommend action on grievances]; or
c. The responsibility to direct [name of plaintiff]’s daily work
[Name of alleged harasser]’s exercise of this authority or responsibility
must not be merely routine or clerical, but must require the use of
independent judgment.
New September 2003; Revised June 2006, December 2015
Directions for Use
The FEHAs definition of “supervisor” refers to the “authority” for factor (a) and the
“responsibility” for factors (b) and (c). The difference, if any, between “authority”
and “responsibility” as used in the statute is not clear. The statute further requires
that “the exercise of that authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.” (See Gov. Code, § 12926(t) [emphasis
added].) However, at least one court has found the independent-judgment
requirement to be applicable to the responsibility for factor (c). (See Chapman v.
Enos (2004) 116 Cal.App.4th 920, 930-931 [10 Cal.Rptr.3d 852] [emphasis added].)
Therefore, the last sentence of the instruction refers to “authority or responsibility.”
Sources and Authority
Harassment Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(j)(1).
“Supervisor” Defined. Government Code section 12926(t).
“The FEHA imposes two standards of employer liability for sexual harassment,
depending on whether the person engaging in the harassment is the victim’s
supervisor or a nonsupervisory coemployee. The employer is liable for
harassment by a nonsupervisory employee only if the employer (a) knew or
should have known of the harassing conduct and (b) failed to take immediate
and appropriate corrective action. This is a negligence standard. Because the
FEHA imposes this negligence standard only for harassment ‘by an employee
other than an agent or supervisor by implication the FEHA makes the employer
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strictly liable for harassment by a supervisor.” (State Dept. of Health Services v.
Superior Court (2003) 31 Cal. 4th 1026, 1040-1041 [6 Cal. Rptr. 3d 441, 79
P.3d 556], internal citations omitted.)
“Unlike discrimination in hiring, the ultimate responsibility for which rests with
the employer, sexual or other harassment perpetrated by a supervisor with the
power to hire, fire and control the victimized employee’s working conditions is a
particularly personal form of the type of discrimination which the Legislature
sought to proscribe when it enacted the FEHA.” (Matthews v. Superior Court
(1995) 34 Cal.App.4th 598, 605-606 [40 Cal.Rptr.2d 350].)
“This section has been interpreted to mean that the employer is strictly liable for
the harassing actions of its supervisors and agents, but that the 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 employers 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.)
“[W]hile full accountability and responsibility are certainly indicia of supervisory
power, they are not required elements of . . . the FEHA definition of supervisor.
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Indeed, many supervisors with responsibility to direct others using their
independent judgment, and whose supervision of employees is not merely
routine or clerical, would not meet these additional criteria though they would
otherwise be within the ambit of the FEHA supervisor definition.” (Chapman,
supra, 116 Cal.App.4th at p. 930, footnote omitted.)
“Defendants take the position that the court’s modified instruction is,
nonetheless, accurate because the phrase ‘responsibility to direct’ is the
functional equivalent of being ‘fully accountable and responsible for the
performance and work product of the employees. . . .’ In this, they rely on the
dictionary definition of ‘responsible’ as ‘marked by accountability.’ But as it
relates to the issue before us, this definition is unhelpful for two reasons. First,
one can be accountable for one’s own actions without being accountable for
those of others. Second, the argument appears to ignore the plain language of the
statute which itself defines the circumstances under which the exercise of the
responsibility to direct will be considered supervisory, i.e., ‘if . . . [it] is not of a
merely routine or clerical nature, but requires the use of independent
judgment.’ (Chapman, supra, 116 Cal.App.4th at pp. 930-931.)
Secondary Sources
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources Of
Law Prohibiting Harassment, 10:17 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-D, Employer
Liability For Workplace Harassment, ¶¶ 10:308, 10:310, 10:315-10:317, 10:321,
10:322 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-E, Harassers
Individual Liability, 10:499 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual and
Other Harassment, § 3.21
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)
California Civil Practice: Employment Litigation § 2:56.50 (Thomson Reuters)
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