Harassment -Conduct Directed at Plaintiff

Legal Framework in California

Definition of Harassment: In California, harassment in the workplace is defined as unwelcome conduct based on race, religion, sex, national origin, age (40 or older), disability, or genetic information. This includes sexual harassment.
Wrongful Termination Laws: California follows the “at-will” employment doctrine but with exceptions. Wrongful termination can occur if an employee is fired for reasons that violate public policy, including retaliation for complaining about harassment.
Protected Classes: California law protects additional classes not covered under federal law, such as sexual orientation, gender identity, and medical condition.
Employer Liability: Employers can be held liable for harassment by a supervisor that results in a negative employment action such as termination. They can also be liable for failing to prevent harassment by coworkers or non-employees.

Potential Problems and Challenges

Proving Harassment: Establishing that harassment occurred can be challenging. It often relies on subjective experiences and the availability of evidence or witnesses.
Retaliation Claims: Employees who face termination after reporting harassment may claim retaliation. Proving a direct link between the complaint and the termination can be complex.
Ambiguity in Law: The definition of harassment can be broad and subjective, leading to disputes over what constitutes illegal behavior.
Employer Defense: Employers may argue that the termination was based on legitimate, non-discriminatory reasons, complicating the legal battle.

Examples

Case of Sexual Harassment Leading to Termination: An employee reports sexual harassment by a supervisor and is subsequently fired for “poor performance.” This could be a classic case of wrongful termination following a harassment complaint.
Hostile Work Environment: An employee in a protected class is subjected to ongoing jokes and comments about their identity, contributing to a hostile work environment. If this leads to their resignation, it could be construed as constructive dismissal, a form of wrongful termination.
Discrimination Based on Disability: An employee with a disability faces derogatory comments and is excluded from meetings. If they are later terminated, they may claim that the harassment and termination were due to discrimination.

Conclusion

In California, the intersection of harassment and wrongful termination laws creates a complex legal landscape. Victims of harassment leading to wrongful termination have legal avenues for redress, but the burden of proof and the nuances of each case make these issues legally challenging. Employers must be proactive in preventing harassment and careful in their termination procedures to avoid legal pitfalls.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

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Additional Information Harassment in California Employment Law:

Harassment in the workplace is a violation of employment laws in California. Harassment can take various forms, including harassment based on race, sex, religion, age, disability, or other protected characteristics. It can create a hostile work environment and may lead to wrongful termination claims if an employer fails to address it properly.

1. Definition of Harassment:

Hostile Work Environment: Harassment in California can occur when unwelcome conduct based on a protected characteristic (e.g., race, gender, age) creates a hostile or intimidating work environment. This can include offensive comments, slurs, jokes, or actions that interfere with an employee’s ability to perform their job.

2. Legal Consequences:

Wrongful Termination: If an employee is terminated because they reported or complained about harassment or because they were the target of harassment, they may have a claim for wrongful termination.
Civil Liability: Employers can be held liable for harassment perpetrated by their employees if they fail to take appropriate corrective action. The consequences may include damages for emotional distress, lost wages, punitive damages, and attorney’s fees.

3. Reporting and Investigating Harassment:

Employees who believe they are being harassed should report the behavior to their supervisor or HR department. Employers are required to have clear policies and procedures for reporting and investigating harassment claims.
Employers are legally obligated to conduct a prompt and thorough investigation of the complaint and take appropriate corrective action if harassment is substantiated.

Problems That Could Arise:

Several issues can arise in the context of harassment, wrongful termination, and employment law in California:

1. Retaliation: Employers are prohibited from retaliating against employees who report harassment or who participate in an investigation. If an employee is wrongfully terminated or faces adverse employment actions after reporting harassment, they may have a separate claim for retaliation.

Example: If an employee reports racial harassment and is subsequently demoted or fired, they may have a valid retaliation claim.

2. Employer Liability: Determining whether an employer took reasonable steps to prevent and address harassment can be complex. Employers must provide anti-harassment training to employees and have effective policies in place to prevent harassment.

Example: If an employer failed to provide training, did not have clear policies, or did not take appropriate action when harassment was reported, they could be held liable for the harassment.

3. Defenses: Employers may raise defenses, such as claiming they had no knowledge of the harassment or that they took prompt and effective corrective action. The effectiveness of these defenses can vary based on the specific circumstances of each case.

Example: If an employer can demonstrate that they promptly investigated and addressed a harassment complaint as soon as they became aware of it, they may have a stronger defense.

Conclusion

In conclusion, harassment in the workplace is a serious violation of employment law in California. Employers must have robust policies in place to prevent, report, and address harassment promptly. Employees who believe they have been subjected to harassment should report it promptly and seek legal advice to protect their rights. Wrongful termination in the context of harassment can lead to significant legal consequences for employers, including civil liability for damages and potential punitive damages.

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Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2521A. Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant (Gov. Code, §§ 12923, 12940(j))

[Name of plaintiff] claims that [he/she/nonbinary pronoun] was subjected to harassment based on [his/her/nonbinary pronoun] [describe protected status, e.g., race, gender, or age] at [name of defendant] and that this harassment created a work environment that was hostile, intimidating, offensive, oppressive, or abusive.

To establish this claim, [name of plaintiff] and that this harassment created a work environment that was hostile, intimidating, offensive, oppressive, or abusive.

That [name of plaintiff] was [an employee of/an applicant for a position with/a person providing services under a contract with/ an unpaid intern with/a volunteer with] [name of defendant];
That [name of plaintiff] was subjected to harassing conduct because [he/she/nonbinary pronoun] was [protected status, e.g., a woman];
That the harassing conduct was severe or pervasive;
That a reasonable [e.g., woman] in [name of plaintiff]’s circumstances would have considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive;
That [name of plaintiff] considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive;
[Select applicable basis of defendant’s liability:] [That a supervisor engaged in the conduct;] [or]

[That [name of defendant] [or [his/her/nonbinary pronoun/its] supervisors or agents] knew or should have known of the conduct and failed to take immediate and appropriate corrective action;]

That [name of plaintiff] was harmed; and
That the conduct was a substantial factor in causing [name of plaintiff]’s harm.

Derived from former CACI No. 2521 December 2007; Revised June 2013, December 2015, May 2018, July 2019, May 2020, November 2021

Directions for Use

This instruction is for use in a hostile work environment case when the defendant is an employer or other entity covered by the FEHA. If the defendant is a labor organization, employment agency, apprenticeship training program or any training program leading to employment (rather than an employer), the instruction should be modified as appropriate. (See Gov. Code, § 12940(j)(1).) The relevant provision protects an employee, an applicant, an unpaid intern or volunteer, or a person providing services under a contract. (See ibid.) If the alleged harassment did not occur in the workplace, the instruction should be modified as appropriate. (See Doe

v. Capital Cities (1996) 50 Cal.App.4th 1038, 1051 [58 Cal.Rptr.2d 122] [“[A]s long as the harassment occurs in a work-related context, the employer is liable”].)

For an individual defendant, such as the alleged harasser or plaintiff’s coworker, see CACI No. 2522A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Individual Defendant. For a case in which the plaintiff is not the target of the harassment, see CACI No. 2521B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Employer or Entity Defendant. For an instruction for use if the hostile environment is due to sexual favoritism, see CACI No. 2521C, Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Employer or Entity Defendant. Also read CACI No. 2523, “Harassing Conduct” Explained, and CACI No. 2524, “Severe or Pervasive” Explained.

Modify element 2 if plaintiff was not actually a member of the protected class, but alleges harassment because the plaintiff was perceived to be a member, or associated with someone who was or was perceived to be a member, of the protected class. (See Gov. Code, § 12926(o).)

In element 6, select the applicable basis of employer liability: (a) strict liability for a supervisor’s harassing conduct, or (b) the employer’s ratification of the conduct. For a definition of “supervisor,” see CACI No. 2525, Harassment—“Supervisor” Defined. If there are both employer and individual supervisor defendants (see CACI No. 2522A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Individual Defendant) and both are found liable, they are both jointly and severally liable for any damages. Comparative fault and Proposition 51 do not apply to the employer’s strict liability for supervisor harassment. (State Dept. of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026, 1041–1042 [6 Cal.Rptr.3d 441, 79 P.3d 556]; see Bihun v. AT&T Information

Systems, Inc. (1993) 13 Cal.App.4th 976, 1000 [16 Cal.Rptr.2d 787], disapproved on

other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664

[25 Cal.Rptr.2d 109, 863 P.2d 179]; see also Rashtian v. BRAC-BH, Inc. (1992) 9

Cal.App.4th 1847, 1851 [12 Cal.Rptr.2d 411] [Proposition 51 cannot be applied to those who are without fault and only have vicarious liability by virtue of some statutory fiat].)

Sources and Authority

Legislative Intent With Regard to Application of the Laws About Harassment. Government Code section 12923.
Harassment Prohibited Under Fair Employment and Housing Act. Government Code section 12940(j)(1).
“Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
Harassment Because of Sex. Government Code section 12940(j)(4)(C).
Person Providing Services Under Contract. Government Code section 12940(j)(5).
Aiding and Abetting Fair Employment and Housing Act Violations. Government Code section 12940(i).
Perception and Association. Government Code section 12926(o).
“To establish a prima facie case of a hostile work environment, [the plaintiff] must show that (1) [plaintiff] is a member of a protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the harassment was based on [plaintiff’s] protected status; (4) the harassment unreasonably interfered with [plaintiff’s] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581 [250 Cal.Rptr.3d 1].)
“[T]he adjudicator’s inquiry should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff’s work performance. To show such interference, ‘the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment.’ It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to ‘make it more difficult to do the job.’ ” (Harris v. Forklift Sys. (1993) 510 U.S. 17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J.; see Gov. Code, § 12923(a) endorsing this language as reflective of California law.)
“[A]n employer is strictly liable for all acts of sexual harassment by a supervisor.” (State Dept. of Health Servs., supra, 31 Cal.4th at p. 1042.)
“The applicable language of the FEHA does not suggest that an employer’s liability for sexual harassment by a supervisor is constrained by principles of agency law. Had the Legislature so intended, it would have used language in the FEHA imposing the negligence standard of liability on acts of harassment by an employee ‘other than an agent,’ ‘not acting as the employer’s agent,’ or ‘not acting within the scope of an agency for the employer.’ By providing instead in section 12940, subdivision (j)(1), that the negligence standard applies to acts of harassment ‘by an employee other than an agent or supervisor’ (italics added), the Legislature has indicated that all acts of harassment by a supervisor are to be exempted from the negligence standard, whether or not the supervisor was then acting as the employer’s agent, and that agency principles come into play only

when the harasser is not a supervisor. (State Dept. of Health Services, supra, 31 Cal.4th at p. 1041, original italics.)

“When the harasser is a nonsupervisory employee, employer liability turns on a showing of negligence (that is, the employer knew or should have known of the harassment and failed to take appropriate corrective action).” (Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 952 [139 Cal.Rptr.3d 464].)
- “If an employee other than an agent or supervisor commits the harassment, and the employer takes immediate and appropriate corrective action when it becomes or reasonably should become aware of the conduct—for example, when the victim or someone else informs the employer—there simply is no ‘unlawful employment practice’ that the FEHA governs.” (Carrisales v. Dept. of Corrections (1999) 21 Cal.4th 1132, 1136 [90 Cal.Rptr.2d 804, 988 P.2d 1083], called into doubt on other grounds by statute.)
- “[I]n order for the employer to avoid strict liability for the supervisor’s actions under the FEHA, the harassment must result from a completely private relationship unconnected with the employment. Otherwise, the employer is strictly liable for the supervisor’s actions regardless of whether the supervisor was acting as the employer’s agent.” (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1421 [56 Cal.Rptr.3d 501].)
- Employers may be liable for the conduct of certain agents. (See Gov. Code,

§§ 12925(d), 12926(d), and 12940(j)(1) and Reno v. Baird (1998) 18 Cal.4th 640, 658 [76 Cal.Rptr.2d 499, 957 P.2d 1333] [California Supreme Court declined to express opinion whether “agent” language in the FEHA merely incorporates respondeat superior principles or has some other meaning].)

“Here, [defendant] was jointly liable with its employees on a respondeat superior or vicarious liability theory on every cause of action in which it was named as a defendant.” (Bihun, supra, 13 Cal.App.4th at p. 1000.)
- “The McDonnell Douglas burden-shifting framework does not apply to [plaintiff]’s harassment claim either. Since ‘there is no possible justification for harassment in the workplace,’ an employer cannot offer a legitimate nondiscriminatory reason for it.” (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 927 [227 Cal.Rptr.3d 286].)
- “[A]lthough no California cases have directly addressed racial harassment in the workplace, the California courts have applied the federal threshold standard to claims of sexual harassment and held that FEHA is violated when the harassment was ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment.’ ” (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 464–465 [79 Cal.Rptr.2d 33], internal citations and footnote omitted.)
- “When the workplace is permeated with discriminatory intimidation, ridicule and insult that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,’ the law is violated.” (Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal.App.4th 397, 409

[27 Cal.Rptr.2d 457], internal citation omitted.)

“[N]ot every utterance of a racial slur in the workplace violates the FEHA or Title VII. As the United States Supreme Court has recognized in the context of sexual harassment: ‘[N]ot all workplace conduct that may be described as “harassment” affects a “term, condition, or privilege” of employment within the meaning of Title VII. For sexual harassment to be actionable, it must be sufficiently severe or pervasive “to alter the conditions of [the victim’s] employment and create an abusive working environment.” ’ . . . ‘Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.’ . . . California courts have adopted the same standard in evaluating claims under the FEHA.” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129–130 [87 Cal.Rptr.2d 132, 980 P.2d 846], internal citations omitted.)
“To be actionable, ‘a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.’ That means a plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail under the FEHA, if a reasonable person in the plaintiff’s position, considering all the circumstances, would not share the same perception. Likewise, a plaintiff who does not perceive the workplace as hostile or abusive will not prevail, even if it objectively is so.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 284 [42 Cal.Rptr.3d 2, 132 P.3d 211], internal citations omitted.)
“The stray remarks doctrine . . . allows a court to weigh and assess the remarks in isolation, and to disregard the potentially damaging nature of discriminatory remarks simply because they are made by ‘nondecisionmakers, or [made] by decisionmakers unrelated to the decisional process.’ [Defendant] also argues that ambiguous remarks are stray, irrelevant, prejudicial, and inadmissible. However, ‘the task of disambiguating ambiguous utterances is for trial, not for summary judgment.’ Determining the weight of discriminatory or ambiguous remarks is a role reserved for the jury.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 540–541 [113 Cal.Rptr.3d 327, 235 P.3d 988], internal citations omitted.)
“[I]n reviewing the trial court’s grant of [defendant]’s summary judgment motion, the Court of Appeal properly considered evidence of alleged discriminatory comments made by decision makers and coworkers along with all other evidence in the record.” (Reid, supra, 50 Cal.4th at p. 545.)
“[M]any employment cases present issues of intent, and motive, and hostile working environment, issues not determinable on paper. Such cases, we caution, are rarely appropriate for disposition on summary judgment, however liberalized

it be.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286 [100

Cal.Rptr.3d 296].)

“In contending that the ‘subjectively offensive’ element was not proven, a defendant ‘will assert that a plaintiff consented to the conduct through active participation in it, or was not injured because the plaintiff did not subjectively find it abusive.’ [¶] [Evidence Code] Section 1106 limits the evidence the defendant may use to support this assertion. It provides that ‘[i]n any civil action alleging conduct which constitutes sexual harassment, sexual assault, or sexual battery, opinion evidence, reputation evidence, and evidence of specific instances of the plaintiff’s sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the plaintiff or the absence of injury to the plaintiff ’ This general rule is, however, subject to the exception that it

‘does not apply to evidence of the plaintiff’s sexual conduct with the alleged perpetrator.’ The term ‘sexual conduct’ within the meaning of section 1106 has been broadly construed to include ‘all active or passive behavior (whether statements or actions), that either directly or through reasonable inference establishes a plaintiff’s willingness to engage in sexual activity,’ including ‘racy banter, sexual horseplay, and statements concerning prior, proposed, or planned sexual exploits.’ ” (Meeks v. AutoZone, Inc. (2018) 24 Cal.App.5th 855, 874 [235 Cal.Rptr.3d 161], internal citations omitted.)

“[A]llegations of a racially hostile work-place must be assessed from the perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.” (McGinest v. GTE Serv. Corp. (9th Cir. 2004) 360 F.3d 1103, 1115.)
- “Under……. FEHA, sexual harassment can occur between members of the same

gender as long as the plaintiff can establish the harassment amounted to discrimination because of sex.” (Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1525 [169 Cal.Rptr.3d 794], original italics.)

“[T]here is no requirement that the motive behind the sexual harassment must be sexual in nature. ‘[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.’ Sexual harassment occurs when, as is alleged in this case, sex is used as a weapon to create a hostile work environment.” (Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547, 1564 [45 Cal.Rptr.3d 597], original italics, internal citation omitted.)
- “The plaintiff must show that the harassing conduct took place because of the plaintiff’s sex, but need not show that the conduct was motivated by sexual desire. For example, a female plaintiff can prevail by showing that the harassment was because of the defendant’s bias against women; she need not show that it was because of the defendant’s sexual interest in women. In every case, however, the plaintiff must show a discriminatory intent or motivation based on gender.” (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 114 [129 Cal.Rptr.3d 384], internal citations omitted.)
- “[A] heterosexual male is subjected to harassment because of sex under the

FEHA when attacks on his heterosexual identity are used as a tool of harassment in the workplace, irrespective of whether the attacks are motivated by sexual desire or interest.” (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1239–1240 [166 Cal.Rptr.3d 676].)

“A recent legislative amendment modifies section 12940, subdivision (j)(4)(C) (a provision of FEHA specifying types of conduct that constitute harassment because of sex) to read: ‘For purposes of this subdivision, “harassment” because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.’ ” (Lewis, supra, 224 Cal.App.4th at p. 1527 fn. 8, original italics.)
“California courts have held so-called ‘me too’ evidence, that is, evidence of gender bias against employees other than the plaintiff, may be admissible evidence in discrimination and harassment cases.” (Meeks, supra, 24 Cal.App.5th at p. 871.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,

§§ 363, 370

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources Of Law Prohibiting Harassment, ¶¶ 10:18–10:19, 10:22, 10:31 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.21, 3.36,

3.45

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.36 (Matthew Bender)

California Civil Practice: Employment Litigation § 2:56 (Thomson Reuters)

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Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2522A. Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Individual Defendant (Gov.Code, §§ 12923, 12940(j))

[Name of plaintiff] claims that [name of individual defendant] subjected [him/her/nonbinary pronoun] to harassment based on [describe protected status, e.g., race, gender, or age] at [name of covered entity] and that this harassment created a work environment that was hostile, intimidating, offensive, oppressive, or abusive.

To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] was [an employee of/an applicant for a position with/a person providing services under a contract with/ an unpaid intern with/a volunteer with] [name of covered entity];

[2. That [name of individual defendant] was an employee of [name of covered entity];]

That [name of plaintiff] was subjected to harassing conduct because [he/she/nonbinary pronoun] was [protected status, e.g., a woman];
That the harassing conduct was severe or pervasive;
That a reasonable [e.g., woman] in [name of plaintiff]’s circumstances would have considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive;
That [name of plaintiff] considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive;
That [name of individual defendant] [participated in/assisted/ [or] encouraged] the harassing conduct;
That [name of plaintiff] was harmed; and
That the conduct was a substantial factor in causing [name of plaintiff]’s harm.

Derived from former CACI No. 2522 December 2007; Revised June 2013, December 2015, May 2018, July 2019, May 2020, November 2021, May 2022

Directions for Use

This instruction is for use in a hostile work environment case if the plaintiff was the target of the harassing conduct and the defendant is also an employee of the covered entity. (Gov. Code, § 12940(j)(3).) Include optional element 2 if there is a dispute about the defendant’s status as an employee and include optional question 2 on the verdict form. See CACI No. VF-2507A, Work Environment Harassment—Conduct

Directed at Plaintiff—Individual Defendant.

The relevant provision protects an employee, an applicant, an unpaid intern or volunteer, or a person providing services under a contract. (See Gov. Code,

§ 12940(j)(1).) If the alleged harassment did not occur in the workplace, the instruction should be modified as appropriate. (See Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1051 [58 Cal.Rptr.2d 122] [“[A]s long as the harassment occurs in a work-related context, the employer is liable”].)

For an employer defendant, see CACI No. 2521A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant. For a case in which the plaintiff is not the target of the harassment, see CACI No. 2522B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Individual Defendant. For an instruction for use if the hostile environment is due to sexual favoritism, see CACI No. 2522C, Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Individual Defendant. Also read CACI No. 2523, “Harassing Conduct” Explained, and CACI No. 2524, “Severe or Pervasive” Explained.

Modify element 3 if the plaintiff was not actually a member of the protected class, but alleges harassment because the plaintiff was perceived to be a member, or associated with someone who was or was perceived to be a member, of the protected class. (See Gov. Code, § 12926(o).)

If there are both employer and individual supervisor defendants (see CACI No. 2521A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant) and both are found liable, they are both jointly and severally liable for any damages. Comparative fault and Proposition 51 do not apply to the employer’s strict liability for supervisor harassment. (State Dept. of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026, 1041–1042 [6 Cal.Rptr.3d 441, 79 P.3d 556]; see Bihun v. AT&T Information

Systems, Inc. (1993) 13 Cal.App.4th 976, 1000 [16 Cal.Rptr.2d 787], disapproved on

other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664

[25 Cal.Rptr.2d 109, 863 P.2d 179]; see also Rashtian v. BRAC-BH, Inc. (1992) 9

Cal.App.4th 1847, 1851 [12 Cal.Rptr.2d 411] [Proposition 51 cannot be applied to those who are without fault and only have vicarious liability by virtue of some statutory fiat].)

See also the Sources and Authority to CACI No. 2521A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant.

Sources and Authority

Legislative Intent With Regard to Application of the Laws About Harassment. Government Code section 12923.
Harassment Prohibited Under Fair Employment and Housing Act. Government Code section 12940(j)(1).
Employee Personal Liability for Harassment. Government Code section 12940(j)(3).
- “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
- Harassment Because of Sex. Government Code section 12940(j)(4)(C).
- Person Providing Services Under Contract. Government Code section 12940(j)(5).
- Aiding and Abetting Fair Employment and Housing Act Violations. Government Code section 12940(i).
- Perception and Association. Government Code section 12926(o).
- “To establish a prima facie case of a hostile work environment, [the plaintiff] must show that (1) [plaintiff] is a member of a protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the harassment was based on [plaintiff’s] protected status; (4) the harassment unreasonably interfered with [plaintiff’s] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581 [250 Cal.Rptr.3d 1].)
- “[T]he adjudicator’s inquiry should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff’s work performance. To show such interference, ‘the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment.’ It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to ‘make it more difficult to do the job.’ ” (Harris v. Forklift Sys. (1993) 510 U.S. 17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J.; see Gov. Code, § 12923(a) endorsing this language as reflective of California law.)
- “Under FEHA, an employee who harasses another employee may be held personally liable.” (Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1524

[169 Cal.Rptr.3d 794].)

“A supervisor who, without more, fails to take action to prevent sexual harassment of an employee is not personally liable as an aider and abettor of the harasser, an aider and abettor of the employer or an agent of the employer.” (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1331 [58 Cal.Rptr.2d 308].)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,

§§ 363, 370

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.36–3.45

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)

CACI No. 2522A FAIR EMPLOYMENT AND HOUSING ACT

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.36 (Matthew Bender)

California Civil Practice: Employment Litigation §§ 2:56–2:56.50 (Thomson Reuters)

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