CACI 2502 Disparate Impact—Essential Factual Elements (Gov. Code, § 12940(a))

California Civil Jury Instructions CACI

2502 Disparate Impact—Essential Factual Elements (Gov. Code, § 12940(a))

[Name of plaintiff] claims that [name of defendant] had [an employment practice/a selection policy] that wrongfully discriminated against [him/her/nonbinary pronoun]. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of defendant] was [an employer/[other covered entity]];

2.That [name of plaintiff] [was an employee of [name of defendant]/applied to [name of defendant] for a job/[other covered relationship to defendant]];

3.That [name of defendant] had [an employment practice of [describe practice]/a selection policy of [describe policy]] that had a disproportionate adverse effect on [describe protected group—for example, persons over the age of 40];

4.That [name of plaintiff] is [protected status];

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

6.That [name of defendant]’s [employment practice/selection policy] was a substantial factor in causing [name of plaintiff]’s harm.

Directions for Use

This instruction is intended for disparate impact employment discrimination claims. Disparate impact occurs when an employer has an employment practice that appears neutral but has an adverse impact on members of a protected group and cannot be justified by business necessity. (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1405 [194 Cal.Rptr.3d 689].)

If element 1 is given, the court may need to instruct the jury on the statutory definition of “employer” under the FEHA. Other covered entities under the FEHA include labor organizations, employment agencies, and apprenticeship training programs. (See Gov. Code, § 12940(a)–(d).)

The court should consider instructing the jury on the meaning of “adverse impact,” tailored to the facts of the case and the applicable law.

Sources and Authority

Discrimination Prohibited Under Fair Employment and Housing Act. Government Code section 12940(a).

Disparate Impact May Prove Age Discrimination. Government Code section 12941.1.

Justification for Disparate Impact. Cal. Code Regs., tit. 2, §§ 11010(b), 11017(a), (e).

“Prohibited discrimination may … be found on a theory of disparate impact, i.e., that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on members of the protected class.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, fn. 20 [100 Cal.Rptr.2d 352, 8 P.3d 1089], internal citations omitted.)

“A ‘disparate impact’ plaintiff … may prevail without proving intentional discrimination … [However,] a disparate impact plaintiff ‘must not merely prove circumstances raising an inference of discriminatory impact; he must prove the discriminatory impact at issue.’ ” (Ibarbia v. Regents of the University of California (1987) 191 Cal.App.3d 1318, 1329–1330 [237 Cal.Rptr. 92], quoting Lowe v. City of Monrovia (9th Cir. 1985) 775 F.2d 998, 1004.)

“ ‘To establish a prima facie case of discrimination, a plaintiff must show that the facially neutral employment practice had a significantly discriminatory impact. If that showing is made, the employer must then demonstrate that “any given requirement [has] a manifest relationship to the employment in question,” in order to avoid a finding of discrimination … Even in such a case, however, the plaintiff may prevail, if he shows that the employer was using the practice as a mere pretext for discrimination.’ ” (City and County of San Francisco v. Fair Employment and Housing Com. (1987) 191 Cal.App.3d 976, 985 [236 Cal.Rptr. 716], quoting Connecticut v. Teal (1982) 457 U.S. 440, 446–447 [102 S.Ct. 2525, 73 L.Ed.2d 130], internal citation omitted.)

“It is well settled that valid statistical evidence is required to prove disparate impact discrimination, that is, that a facially neutral policy has caused a protected group to suffer adverse effects. ‘ “Once the employment practice at issue has been identified, causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group. … [S]tatistical disparities must be sufficiently substantial that they raise such an inference of causation.” ’ ” (Jumaane, supra, 241 Cal.App.4th at p. 1405.)

Under federal title VII, a plaintiff may establish an unlawful employment practice based on disparate impact in one of two ways: (1) the plaintiff demonstrates that a defendant uses a particular employment practice that causes a disparate impact on the basis of a protected status, and the defendant “fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity”; or (2) the plaintiff demonstrates that there is an alternative employment practice with less adverse impact, and the defendant “refuses to adopt such alternative employment practice.” (42 U.S.C. § 2000e-2(k)(1)(A).)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 4-A, Employment Presumed At Will, ¶ 4:25 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment And Housing Act, ¶¶ 7:530, 7:531, 7:535 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, § 2.65
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.21 (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[2][c] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.23[4] (Matthew Bender)
California Civil Practice: Employment Litigation, § 2:23 (Thomson Reuters)