California Civil Jury Instructions (CACI) (2017)

3065. Sexual Harassment in Defined Relationship—Essential Factual Elements (Civ. Code, § 51.9)

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3065.Sexual Harassment in Defined Relationship—Essential
Factual Elements (Civ. Code, § 51.9)
[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];]
2. [or]
2. [That [name of defendant] engaged in [verbal/visual/physical]
conduct of a [sexual nature/hostile nature based on gender];]
3. That [name of defendant]’s conduct was unwelcome and also
pervasive or severe;
4. That [name of plaintiff] was unable to easily end the relationship
with [name of defendant]; and
5. 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.
New September 2003; Revised April 2008; Renumbered from CACI No. 3024
December 2012
Directions for Use
Select either or both options for element 2 depending on the defendant’s conduct.
See also CACI No. 2524, “Severe or Pervasive” Explained.
Sources and Authority
• Sexual Harassment in Defined Relationship. Civil Code section 51.9.
• “[The] history of the [1999] amendments to Civil Code section 51.9 leaves no
doubt of the Legislature’s intent to conform the requirements governing liability
for sexual harassment in professional relationships outside the workplace to
those of the federal law’s Title VII and California’s FEHA, both of which
pertain to liability for sexual harassment in the workplace. Under both laws, an
employee plaintiff who cannot prove a demand for sexual favors in return for a
job benefit (that is, quid pro quo harassment) must show that the sexually
harassing conduct was so pervasive or severe as to alter the conditions of
employment. With respect to liability under section 51.9, which covers a wide
variety of business relationships outside the workplace, the relevant inquiry is
whether the alleged sexually harassing conduct was sufficiently pervasive or
severe as to alter the conditions of the business relationship. This inquiry must
necessarily take into account the nature and context of the particular business
relationship.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1048 [95 Cal.Rptr.3d
636, 209 P.3d 963].)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law § 896
1California Landlord-Tenant Practice, Ch. 3, Liability for Sexual Harassment
(Cont.Ed.Bar 2d ed.) § 3.70A
1 Wrongful Employment Termination Practice, Ch. 3, When Plaintiff is Not
Employee, Applicant, or Independent Contractor (Cont.Ed.Bar 2d ed.) § 3.12
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)
1 Westley et al., Matthew Bender Practice Guide: California Landlord-Tenant
Litigation, Ch. 2, Creation of Tenancy, 2.13 (Matthew Bender)