CACI No. 2570. Age Discrimination - Disparate Treatment - Essential Factual Elements
Judicial Council of California Civil Jury Instructions (2025 edition)
Download PDF
2570.Age Discrimination - Disparate Treatment - Essential
Factual Elements
[Name of plaintiff] claims that [name of defendant] wrongfully
discriminated against [him/her/nonbinary pronoun] because of [his/her/
nonbinary pronoun] age. To establish this claim, [name of plaintiff] must
prove all of the following:
1. That [name of defendant] was [an employer/[other covered entity]];
2. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/[describe other covered
relationship to defendant]];
3. [That [name of defendant] [discharged/refused to hire/[other
adverse employment action]] [name of plaintiff];]
3. [or]
3. [That [name of defendant] subjected [name of plaintiff] to an
adverse employment action;]
3. [or]
3. [That [name of plaintiff] was constructively discharged;]
4. That [name of plaintiff] was age 40 or older at the time of the
[discharge/[other adverse employment action]];
5. That [name of plaintiff]’s age was a substantial motivating reason
for [name of defendant]’s [decision to [discharge/refuse to hire/
[other adverse employment action]] [name of plaintiff]/conduct];
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New June 2011; Revised June 2012, June 2013, May 2020
Directions for Use
Read the first option for element 3 if there is no dispute as to whether the
employer’s acts constituted an adverse employment action. Read the second option
and also give CACI No. 2509, “Adverse Employment Action” Explained, if whether
there was an adverse employment action is a question of fact for the jury. If
constructive discharge is alleged, give the third option for element 3 and also give
CACI No. 2510, “Constructive Discharge” Explained. Select “conduct” in element
5 if the either the second or third option is included for element 3.
Note that there are two causation elements. There must be a causal link between the
1670
discriminatory animus based on age and the adverse action (see element 5), and
there must be a causal link between the adverse action and the damage (see element
7). (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 [81
Cal.Rptr.3d 406].)
Element 5 requires that age discrimination be a substantial motivating reason for the
adverse action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232
[152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, “Substantial
Motivating Reason” Explained.)
Under the McDonnell Douglas (McDonnell Douglas Corp. v. Green (1973) 411 U.S.
792 [93 S.Ct. 1817, 36 L.Ed.2d 668]) process for allocating burdens of proof and
producing evidence, which is used in California for disparate-treatment cases under
FEHA, the employee must first present a prima facie case of discrimination. The
burden then shifts to the employer to produce evidence of a nondiscriminatory
reason for the adverse action. At that point, the burden shifts back to the employee
to show that the employer’s stated reason was in fact a pretext for a discriminatory
act.
Whether or not the employee has met the employee’s prima facie burden, and
whether or not the employer has rebutted the employee’s prima facie showing, are
questions of law for the trial court, not questions of fact for the jury. (See Caldwell
v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201 [48 Cal.Rptr.2d
448].) In other words, by the time that the case is submitted to the jury, the plaintiff
has already established a prima facie case, and the employer has already proffered a
legitimate, nondiscriminatory reason for the adverse employment decision. The
McDonnell Douglas shifting burden drops from the case. The jury is left to decide
which evidence it finds more convincing, that of the employer’s discriminatory
intent or that of the employer’s age-neutral reasons for the employment decision.
(See Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1118, fn. 5 [94
Cal.Rptr.2d 579]).
Under FEHA, age-discrimination cases require the employee to show that the
employee’s job performance was satisfactory at the time of the adverse employment
action as a part of the employee’s prima facie case (see Sandell v. Taylor-Listug,
Inc. (2010) 188 Cal.App.4th 297, 321 [115 Cal.Rptr.3d 453]), even though it is the
employer’s burden to produce evidence of a nondiscriminatory reason for the action.
Poor job performance is the most common nondiscriminatory reason that an
employer advances for the action. Even though satisfactory job performance may be
an element of the employee’s prima facie case, it is not an element that the
employee must prove to the trier of fact. Under element 5 and CACI No. 2507, the
burden remains with the employee to ultimately prove that age discrimination was a
substantial motivating reason for the action. (See Muzquiz,supra, 79 Cal.App.4th at
p. 1119.)
See also the Sources and Authority to CACI No. 2500, Disparate
Treatment - Essential Factual Elements.
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2570
1671
Sources and Authority
• Age Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• “Age” Defined. Government Code section 12926(b).
• Disparate Treatment; Layoffs Based on Salary. Government Code section 12941.
• “In order to make out a prima facie case of age discrimination under FEHA, a
plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2)
suffered an adverse employment action; (3) was performing satisfactorily at the
time of the adverse action; and (4) suffered the adverse action under
circumstances that give rise to an inference of unlawful discrimination, i.e.,
evidence that the plaintiff was replaced by someone significantly younger than
the plaintiff.” (Sandell,supra, 188 Cal.App.4th at p. 321.)
• “In other words, ‘[b]y the time that the case is submitted to the jury, . . . the
plaintiff has already established his or her prima facie case, and the employer
has already proffered a legitimate, nondiscriminatory reason for the adverse
employment decision, leaving only the issue of the employer’s discriminatory
intent for resolution by the trier of fact. Otherwise, the case would have been
disposed of as a matter of law for the trial court. That is to say, if the plaintiff
cannot make out a prima facie case, the employer wins as a matter of law. If the
employer cannot articulate a nondiscriminatory reason for the adverse
employment decision, the plaintiff wins as a matter of law. In those instances, no
fact-finding is required, and the case will never reach a jury. [¶] In short, if and
when the case is submitted to the jury, the construct of the shifting burden
“drops from the case,” and the jury is left to decide which evidence it finds more
convincing, that of the employer’s discriminatory intent, or that of the
employer’s race or age-neutral reasons for the employment decision.’ ” (Muzquiz,
supra, 79 Cal.App.4th at p. 1118, fn. 5.)
• “Because the only issue properly before the trier of fact was whether the
[defendant]’s adverse employment decision was motivated by discrimination on
the basis of age, the shifting burdens of proof regarding appellant’s prima facie
case and the issue of legitimate nondiscriminatory grounds were actually
irrelevant.” (Muzquiz,supra, 79 Cal.App.4th at p. 1119.)
• “An employee alleging age discrimination must ultimately prove that the adverse
employment action taken was based on his or her age. Since direct evidence of
such motivation is seldom available, the courts use a system of shifting burdens
as an aid to the presentation and resolution of age discrimination cases. That
system necessarily establishes the basic framework for reviewing motions for
summary judgment in such cases.” (Hersant v. Department of Social Services
(1997) 57 Cal.App.4th 997, 1002 [67 Cal.Rptr.2d 483], internal citations
omitted.)
• “Requiring the plaintiff to show that discrimination was a substantial motivating
factor, rather than simply amotivating factor, more effectively ensures that
CACI No. 2570 FAIR EMPLOYMENT AND HOUSING ACT
1672
liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability, even if other factors would have led the employer to make
the same decision at the time.” (Harris,supra, 56 Cal.4th at p. 232, original
italics.)
• “We do not suggest that discrimination must be alone sufficient to bring about an
employment decision in order to constitute a substantial motivating factor. But it
is important to recognize that discrimination can be serious, consequential, and
even by itself determinative of an employment decision without also being a
“but for” cause.” (Harris,supra, 56 Cal.4th at p. 229.)
• “While we agree that a plaintiff must demonstrate some basic level of
competence at his or her job in order to meet the requirements of a prima facie
showing, the burden-shifting framework established in McDonnell Douglas
compels the conclusion that any measurement of such competency should, to the
extent possible, be based on objective, rather than subjective, criteria. A
plaintiff’s burden in making a prima facie case of discrimination is not intended
to be ‘onerous.’ Rather, the prima facie burden exists in order to weed out
patently unmeritorious claims.” (Sandell,supra, 188 Cal.App.4th at p. 322,
internal citations omitted.)
• “A discharge is not ‘on the ground of age’ within the meaning of this prohibition
unless age is a ‘motivating factor’ in the decision. Thus, ‘ “an employer would
be entitled to judgment as a matter of law if the record conclusively revealed
some other, nondiscriminatory reason for the employer’s decision.” ’ ‘[A]n
employee claiming discrimination must offer substantial evidence that the
employer’s stated nondiscriminatory reason for the adverse action was untrue or
pretextual, or evidence the employer acted with a discriminatory animus, or a
combination of the two, such that a reasonable trier of fact could conclude the
employer engaged in intentional discrimination.’ ” (West v. Bechtel Corp. (2002)
96 Cal.App.4th 966, 978 [117 Cal.Rptr.2d 647].)
• “[D]ownsizing alone is not necessarily a sufficient explanation, under the FEHA,
for the consequent dismissal of an age-protected worker. An employer’s freedom
to consolidate or reduce its work force, and to eliminate positions in the process,
does not mean it may ‘use the occasion as a convenient opportunity to get rid of
its [older] workers.’ ” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358
[100 Cal.Rptr.2d 352, 8 P.3d 1089].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1041-1044
Chin et al., California Practice Guide: Employment Litigation, Ch. 8-B, California
Fair Employment and Housing Act, ¶¶ 8:740, 8:800 et seq. (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2570
1673
Equal Employment Opportunity Laws, § 41.31 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.22 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.43 (Matthew Bender)
2571-2579. Reserved for Future Use
CACI No. 2570 FAIR EMPLOYMENT AND HOUSING ACT
1674
© Judicial Council of California.
