CACI No. 2528. Failure to Prevent Harassment by Nonemployee (Gov. Code, § 12940(j))

Judicial Council of California Civil Jury Instructions (2020 edition)

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2528.Failure to Prevent Harassment by Nonemployee (Gov. Code,
§ 12940(j))
[Name of plaintiff] claims that [name of defendant] failed to take
reasonable steps to prevent harassment based on [his/her/nonbinary
pronoun][describe protected status, e.g., race, gender, or age] by a
nonemployee. 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 an unpaid [intern/
volunteer] for [name of defendant]/was a person providing services
under a contract with [name of defendant]];
2. That while in the course of employment, [name of plaintiff] was
subjected to harassment based on [his/her/nonbinary pronoun]
[e.g.,race] by [name], who was not an employee of [name of
defendant];
3. That [name of defendant] knew or should have known that the
nonemployee’s conduct placed employees at risk of harassment;
4. That [name of defendant] failed to take immediate and appropriate
[preventive/corrective] action;
5. That the ability to take [preventive/corrective] action was within
the control of [name of defendant];
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s failure to take immediate and
appropriate steps to [prevent/put an end to] the harassment was a
substantial factor in causing [name of plaintiff]’s harm.
New November 2018; Revised January 2019
Directions for Use
Give this instruction on a claim against the employer for failure to prevent
harassment by a nonemployee. The FEHA protects not only employees, but also
applicants, unpaid interns or volunteers, and persons providing services under a
contract (element 1). (Gov. Code, § 12940(j)(1).) Modify references to employment
in elements 2 and 3 as necessary if the plaintiff’s status is other than an employee.
Note that unlike claims for failure to prevent acts of a co-employee (see Gov. Code,
§ 12940(k)), only harassment is covered. (Gov. Code, § 12940(j)(1).) If there is such
a thing as discrimination or retaliation by a nonemployee, there is no employer duty
to prevent it under the FEHA.
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The employer’s duty is to “take immediate and appropriate corrective action.” (Gov.
Code § 12940(j)(1).) In contrast, for the employer’s failure to prevent acts of an
employee, the duty is to “take all reasonable steps necessary to prevent
discrimination and harassment from occurring.” (Gov. Code, § 12940(k).)
Whether the employer must prevent or later correct the harassing situation would
seem to depend on the facts of the case. If the issue is to stop harassment from
recurring after becoming aware of it, the employer’s duty would be to “correct” the
problem. If the issue is to address a developing problem before the harassment
occurs, the duty would be to “prevent” it. Choose the appropriate words in elements
4, 5, and 7 depending on the facts.
Sources and Authority
• Prevention of Harassment by a Nonemployee. Government Code section
12940(j)(1).
• Prevention of Discrimination and Harassment. Government Code section
12940(k).
• “The FEHA provides: ‘An employer may . . . be responsible for the acts of
nonemployees, with respect to sexual harassment of employees . . . , where the
employer, or its agents or supervisors, knows or should have known of the
conduct and fails to take immediate and appropriate corrective action. In
reviewing cases involving the acts of nonemployees, the extent of the employer’s
control and any other legal responsibility that the employer may have with
respect to the conduct of those nonemployees shall be considered.’ . . . ’ A
plaintiff cannot state a claim for failure to prevent harassment unless the plaintiff
first states a claim for harassment.” (M.F. v. Pacific Pearl Hotel Management
LLC (2017) 16 Cal.App.5th 693, 700-701 [224 Cal.Rptr.3d 542].)
• “Once an employer is informed of the sexual harassment, the employer must
take adequate remedial measures. The measures need to include immediate
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., supra, 16 Cal.App.5th at p. 701.)
• “[T]he language of section 12940, subdivision (j)(1), does not limit its
application to a particular fact pattern. Rather, the language of the statute
provides for liability whenever an employer (1) knows or should know of sexual
harassment by a nonemployee and (2) fails to take immediate and appropriate
remedial action (3) within its control. (M.F., supra, 16 Cal.App.5th at p. 702.)
• “[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.)
• “The more egregious the abuse and the more serious the threat of which the
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2528
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employer has notice, the more the employer will be required under a standard of
reasonable care to take steps for the protection of likely future victims.” (M.F.,
supra, 16 Cal.App.5th at p. 701.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency, §§ 363, 370
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1019,
1028, 1035
2529-2539. Reserved for Future Use
CACI No. 2528 FAIR EMPLOYMENT AND HOUSING ACT
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