CACI No. 2620. CFRA Rights Retaliation - Essential Factual Elements (Gov. Code, § 12945.2( l ))

Judicial Council of California Civil Jury Instructions (2020 edition)

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2620.CFRA Rights Retaliation - Essential Factual Elements (Gov.
Code, § 12945.2(l))
[Name of plaintiff] claims that [name of defendant] retaliated against [him/
her/nonbinary pronoun] for [[requesting/taking] [family care/medical]
leave/[other protected activity]]. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of plaintiff] was eligible for [family care/medical]
2. That [name of plaintiff] [[requested/took] [family care/medical]
leave/[other protected activity]];
3. That [name of defendant] [discharged/[other adverse employment
action]] [name of plaintiff];
4. That [name of plaintiff]’s [[request for/taking of] [family
care/medical] leave/[other protected activity]] was a substantial
motivating reason for [discharging/[other adverse employment
action]] [him/her/nonbinary pronoun];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s retaliatory conduct was a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003; Revised December 2012, June 2013, May 2018
Directions for Use
Use this instruction in cases of alleged retaliation for an employee’s exercise of
rights granted by the California Family Rights Act (CFRA). (See Gov. Code,
§ 12945.2(l).) The instruction assumes that the defendant is plaintiff’s present or
former employer, and therefore it must be modified if the defendant is a prospective
employer or other person.
This instruction may also be given for a claim of retaliation under the New Parent
Leave Act. The “other protected activity” option of the opening paragraph and
elements 2 and 4 may be used to assert what is protected from retaliation under this
act. (See Gov. Code, § 12945.6(g), (h).) In element 1, use “new parent” leave
instead of “family care” or “medical.”
Both statutes reach a broad range of adverse employment actions short of actual
discharge. (See Gov. Code, §§ 12945.2(l), 12945.6(g).) Element 3 may be modified
to allege constructive discharge or adverse acts other than actual discharge. See
CACI No. 2509, “Adverse Employment Action” Explained, and CACI No. 2510,
“Constructive Discharge” Explained, for instructions under the Fair Employment
and Housing Act that may be adapted for use with this instruction.
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Element 4 uses the term “substantial motivating reason” to express both intent and
causation between the employee’s exercise of a CFRA right and the adverse
employment action. “Substantial motivating reason” has been held to be the
appropriate standard under the discrimination prohibitions of the Fair Employment
and Housing Act to address the possibility of both discriminatory and
nondiscriminatory motives. (See Harris v. City of Santa Monica (2013) 56 Cal.4th
203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507, “Substantial
Motivating Reason” Explained.) Whether this standard applies to CFRA retaliation
cases has not been addressed by the courts.
Sources and Authority
• Retaliation Prohibited Under California Family Rights Act. Government Code
section 12945.2(l), (t).
• Retaliation Prohibited Under New Parent Leave Act. Government Code section
12945.6(g), (h).
• Retaliation Prohibited Under Fair Employment and Housing Act. Government
Code section 12940(h).
• “The elements of a cause of action for retaliation in violation of CFRA are “ ‘(1)
the defendant was an employer covered by CFRA; (2) the plaintiff was an
employee eligible to take CFRA [leave]; (3) the plaintiff exercised her right to
take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an
adverse employment action, such as termination, fine, or suspension, because of
her exercise of her right to CFRA [leave].” ’ ” (Soria v. Univision Radio Los
Angeles, Inc. (2016) 5 Cal.App.5th 570, 604 [210 Cal.Rptr.3d 59].)
• “Similar to causes of action under FEHA, the McDonnell Douglas burden
shifting analysis applies to retaliation claims under CFRA.” (Moore v. Regents of
University of California (2016) 248 Cal.App.4th 216, 248 [206 Cal.Rptr.3d
• “ ‘When an adverse employment action “follows hard on the heels of protected
activity, the timing often is strongly suggestive of retaliation.” ’ ” (Bareno v. San
Diego Community College Dist. (2017) 7 Cal.App.5th 546, 571 [212 Cal.Rptr.3d
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1058-1060
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family
And Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶¶ 12:1300,
12:1301 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Other Employee
Rights Statutes, §§ 4.18-4.20
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, § 8.32 (Matthew
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11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.37[3][c] (Matthew Bender)
2621-2629. Reserved for Future Use
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