CACI No. 2527. Failure to Prevent Harassment, Discrimination, or Retaliation - Essential Factual Elements - Employer or Entity Defendant (Gov. Code, § 12940(k))

Judicial Council of California Civil Jury Instructions (2020 edition)

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2527.Failure to Prevent Harassment, Discrimination, or
Retaliation - Essential Factual Elements - Employer or Entity
Defendant (Gov. Code, § 12940(k))
[Name of plaintiff] claims that [name of defendant] failed to take all
reasonable steps to prevent [harassment/discrimination/retaliation]
[based on [describe protected status - e.g., race, gender, or age]]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/was a person providing
services under a contract with [name of defendant]];
2. That [name of plaintiff] was subjected to
[harassment/discrimination/retaliation] in the course of
employment;
3. That [name of defendant] failed to take all reasonable steps to
prevent the [harassment/discrimination/retaliation];
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s failure to take all reasonable steps to
prevent [harassment/discrimination/retaliation] was a substantial
factor in causing [name of plaintiff]’s harm.
New June 2006; Revised April 2007, June 2013, December 2015
Directions for Use
Give this instruction after the appropriate instructions in this series on the
underlying claim for discrimination, retaliation, or harassment if the employee also
claims that the employer failed to prevent the conduct. (See Gov. Code, § 12940(k).)
Read the bracketed language in the opening paragraph beginning with “based on” if
the claim is for failure to prevent harassment or discrimination.
For guidance for a further instruction on what constitutes “reasonable steps,” see
section 11019(b)(4) of Title 2 of the California Code of Regulations.
Sources and Authority
• Prevention of Discrimination and Harassment. Government Code section
12940(k).
• “The employer’s duty to prevent harassment and discrimination is affirmative
and mandatory.” (Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd.
(2002) 103 Cal.App.4th 1021, 1035 [127 Cal.Rptr.2d 285].)
• “Once an employer is informed of the sexual harassment, the employer must
take adequate remedial measures. The measures need to include immediate
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corrective action that is reasonably calculated to (1) end the current harassment
and (2) to deter future harassment. [Citation.] The employer’s obligation to take
prompt corrective action requires (1) that temporary steps be taken to deal with
the situation while the employer determines whether the complaint is justified
and (2) that permanent remedial steps be implemented by the employer to
prevent future harassment . . . .” (M.F. v. Pacific Pearl Hotel Management LLC
(2017) 16 Cal.App.5th 693, 701 [224 Cal.Rptr.3d 542].)
• “This section creates a tort that is made actionable by statute. ‘ “ ‘[T]he word
“tort” means a civil wrong, other than a breach of contract, for which the law
will provide a remedy in the form of an action for damages.’ ‘It is well settled
the Legislature possesses a broad authority . . . to establish . . . tort causes of
action.’ Examples of statutory torts are plentiful in California law.” ’ Section
12960 et seq. provides procedures for the prevention and elimination of unlawful
employment practices. In particular, section 12965, subdivision (a) authorizes the
Department of Fair Employment and Housing (DFEH) to bring an accusation of
an unlawful employment practice if conciliation efforts are unsuccessful, and
section 12965, subdivision (b) creates a private right of action for damages for a
complainant whose complaint is not pursued by the DFEH.” (Trujillo v. North
County Transit Dist. (1998) 63 Cal.App.4th 280, 286 [73 Cal.Rptr.2d 596],
internal citations omitted.)
• “With these rules in mind, we examine the section 12940 claim and finding with
regard to whether the usual elements of a tort, enforceable by private plaintiffs,
have been established: Defendants’ legal duty of care toward plaintiffs, breach of
duty (a negligent act or omission), legal causation, and damages to the plaintiff.”
(Trujillo, supra, 63 Cal.App.4th at pp. 286-287, internal citation omitted.)
• “[W]hether an employer sufficiently complied with its mandate to ‘take
immediate and appropriate corrective action’ is a question of fact.” (M.F.,supra,
16 Cal.App.5th at p. 703, internal citation omitted.)
• “[C]ourts have required a finding of actual discrimination or harassment under
FEHA before a plaintiff may prevail under section 12940, subdivision (k).”
(Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314 [184
Cal.Rptr.3d 774].)
• “Also, there is a significant question of how there could be legal causation of
any damages (either compensatory or punitive) from such a statutory violation,
where the only jury finding was the failure to prevent actionable harassment or
discrimination, which, however, did not occur.” (Trujillo, supra, 63 Cal.App.4th
at p. 289.)
• “[T]he ‘Directions for Use’ to CACI No. 2527 (2015), . . . states that the failure
to prevent instruction should be given ‘after the appropriate instructions in this
series on the underlying claim for . . . harassment if the employee also claims
that the employer failed to prevent the conduct.’ An instruction on the elements
of an underlying sexual harassment claim would be unnecessary if the failure to
take reasonable steps necessary to prevent a claim for harassment could be based
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on harassing conduct that was not actionable harassment.” (Dickson, supra, 234
Cal.App.4th at p. 1317.)
• “In accordance with . . . the fundamental public policy of eliminating
discrimination in the workplace under the FEHA, we conclude that retaliation is
a form of discrimination actionable under [Gov. Code] section 12940,
subdivision (k).” (Taylor v. City of Los Angeles Dept. of Water & Power (2006)
144 Cal.App.4th 1216, 1240 [51 Cal.Rptr.3d 206], disapproved on other grounds
in Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158 [72
Cal.Rptr.3d 624, 177 P.3d 232].)
• “[Defendant] suggests that a separate element in CACI No. 2527 requiring
[plaintiff] to prove that the failure to prevent discrimination or retaliation was ‘a
substantial factor in causing her harm’ is equivalent to the disputed element in
the other CACI instructions requiring [plaintiff] to prove that her pregnancy-
related leave was ‘a motivating reason’ for her discharge. However, the
‘substantial factor in causing harm’ element in CACI No. 2527 does not concern
the causal relationship between the adverse employment action and the plaintiff’s
protected status or activity. Rather, it concerns the causal relationship between
the discriminatory or retaliatory conduct, if proven, and the plaintiff’s injury.”
(Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466,
480 [161 Cal.Rptr.3d 758].)
Secondary Sources
10 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 921
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment and Housing Act, ¶¶ 7:670-7:672 (The Rutter
Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.02[6], 41.80[1], 41.81[7] (Matthew
Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[10][g] (Matthew Bender)
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