California Civil Jury Instructions (CACI)

3024. Sexual Harassment in Defined Relationship (Civ. Code, § 51.9) - Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] sexually harassed [him/her]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] had a business, service, or professional relationship with [name of defendant];

2. [That [name of defendant] made [sexual advances/ solicitations/sexual requests/demands for sexual compliance/ [insert other actionable conduct] to [name of plaintiff];]

[That [name of defendant] engaged in [verbal/visual/ physical] conduct of a [sexual nature/hostile nature based on gender] that was unwelcome and pervasive or severe;]

3. That [name of plaintiff] was unable to easily end the relationship with [name of defendant]; and

4. That [name of plaintiff] has suffered or will suffer [economic loss or disadvantage/personal injury/the violation of a statutory or constitutional right] as a result of [name of defendant]'s conduct.

Directions for Use

The first bracketed portion of element 2 should be analogous to quid pro quo harassment under FEHA in terms of the severity of conduct that must be proved.

In element 1, either insert the appropriate profession from the statutory list (Civ. Code, § 51.9(a)(1)(A)-(E)), or if there is a factual dispute over whether the relationship qualifies, provide examples from this list as guidance. (Civ. Code, § 51.9(a)(1)(F).)

Sources and Authority

Civil Code section 51.9 provides:

(a) A person is liable in a cause of action for sexual harassment under this section when the plaintiff proves all of the following elements:

(1) There is a business, service, or professional relationship between the plaintiff and defendant. Such a relationship may exist between a plaintiff and a person, including, but not limited to, any of the following persons:

(A) Physician, psychotherapist, or dentist. For purposes of this section, "psychotherapist" has the same meaning as set forth in paragraph (1) of subdivision (c) of Section 728 of the Business and Professions Code.

(B) Attorney, holder of a master's degree in social work, real estate agent, real estate appraiser, accountant, banker, trust officer, financial planner loan officer, collection service, building contractor, or escrow loan officer.

(C) Executor, trustee, or administrator.

(D) Landlord or property manager.

(E) Teacher.

(F) A relationship that is substantially similar to any of the above.

(2) The defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe.

(3) There is an inability by the plaintiff to easily terminate the relationship.

(4) The plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including, but not limited to, emotional distress or the violation of a statutory or constitutional right, as a result of the conduct described in paragraph (2).

(b) In an action pursuant to this section, damages shall be awarded as provided by subdivision (b) of Section 52.

(c) Nothing in this section shall be construed to limit application of any other remedies or rights provided under the law.

(d) The definition of sexual harassment and the standards for determining liability set forth in this section shall be limited to determining liability only with regard to a cause of action brought under this section.

Secondary Sources

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.36, Ch. 116, Civil Rights: Discrimination in Business Establishments, §§ 116.35, 116.90, Ch. 117, Civil Rights: Housing Discrimination, § 117.32 (Matthew Bender)

3 California Points and Authorities, Ch. 35, Civil Rights (Matthew Bender)

(New September 2003)