CACI 2441 Discrimination Against Member of Military—Essential Factual Elements (Mil. & Vet. Code, § 394)

California Civil Jury Instructions CACI

2441 Discrimination Against Member of Military—Essential Factual Elements (Mil. & Vet. Code, § 394)

[Name of plaintiff] claims that [name of defendant] wrongfully discriminated against [him/her/nonbinary pronoun] because of [his/her/nonbinary pronoun] [current/past] service in the [United States/California] military. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of plaintiff] was an employee of [name of defendant];

2.That [name of plaintiff] [was serving/had served] in the [specify military branch, e.g., California National Guard];

3.That [name of defendant] discharged [name of plaintiff];

4.That [name of plaintiff]’s [[current/past] service in the armed forces/need to report for required military [duty/training]] was a substantial motivating reason for [name of defendant]’s decision to discharge [name of plaintiff];

5.That [name of plaintiff] was harmed; and

6.That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

Directions for Use

Military and Veterans Code section 394 prohibits employment discrimination against members of the military on two grounds. First, discrimination is prohibited based simply on the plaintiff’s military membership or service. In other words, an employer, public or private, may not refuse to hire or discharge someone based on the fact that the person serves or has served in the armed forces. (Mil. & Vet. Code, § 394(a), (b).) Second, a military-member employee is protected from discharge or other adverse actions because of a requirement to participate in military duty or training. (Mil. & Vet. Code, § 394(d).) For element 4, choose the appropriate option.

The statute prohibits a refusal to hire based on military status, and also reaches a broad range of adverse employment actions short of actual discharge. (See Mil. & Vet. Code, § 394(a), (b), (d) [prohibiting prejudice, injury, harm].) Elements 1, 3, 4, and 6 may be modified to refer to seeking employment and refusal to hire. Elements 3, 4, and 6 may be modified to allege constructive discharge or adverse acts other than 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.

Element 4 uses the term “substantial motivating reason” to express both intent and causation between the the employee’s military service and the discharge. “Substantial motivating reason” has been held to be the appropriate standard under 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 the FEHA standard applies to cases alleging military service discrimination under section 394 has not been addressed by the courts. However, military and veteran status is now a protected category under the FEHA. (See Gov. Code, § 12940(a).

Sources and Authority

Discrimination Against Members of the Military. Military and Veterans Code section 394.

Military and Veteran Status Protected Under Fair Employment and Housing Act. Government Code section 12940(a).

“[I]ndividual employees may not be held personally liable under section 394 for alleged discriminatory acts that arise out of the performance of regular and necessary personnel management duties.” (Haligowski v. Superior Court (2011) 200 Cal.App.4th 983, 998 [134 Cal. Rptr. 3d 214].)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment, §§ 369, 472
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination and Discipline, § 60.03 (Matthew Bender)