CACI 2505 Retaliation—Essential Factual Elements (Gov. Code, § 12940(h))

California Civil Jury Instructions CACI

2505 Retaliation—Essential Factual Elements (Gov. Code, § 12940(h))

[Name of plaintiff] claims that [name of defendant] retaliated against [him/her/nonbinary pronoun] for [describe activity protected by the FEHA]. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of plaintiff] [describe protected activity];

2.[That [name of defendant] [discharged/demoted/[specify other adverse employment action]] [name of plaintiff];]


[That [name of defendant] subjected [name of plaintiff] to an adverse employment action;]


[That [name of plaintiff] was constructively discharged;]

3.That [name of plaintiff]’s [describe protected activity] was a substantial motivating reason for [name of defendant]’s [decision to [discharge/demote/[specify other adverse employment action]]

[name of plaintiff]/conduct];

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

5.That [name of defendant]’s decision to [discharge/demote/[specify other adverse employment action]] [name of plaintiff] was a substantial factor in causing [him/her/nonbinary pronoun] harm.

[[Name of plaintiff] does not have to prove [discrimination/harassment] in order to be protected from retaliation. If [he/she/nonbinary pronoun] [reasonably believed that [name of defendant]’s conduct was unlawful/requested a [disability/religious] accommodation], [he/she/nonbinary pronoun] may prevail on a retaliation claim even if [he/she/nonbinary pronoun] does not present, or prevail on, a separate claim for [discrimination/harassment/[other]].]

New September 2003; Revised August 2007, April 2008, October 2008, April 2009, June 2010, June 2012, December 2012, June 2013, June 2014, June 2016, December 2016

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Directions for Use

In elements 1 and 3, describe the protected activity in question. Government Code section 12940(h) provides that it is unlawful to retaliate against a person “because the person has opposed any practices forbidden under [Government Code sections 12900 through 12966] or because the person has filed a complaint, testified, or assisted in any proceeding under [the FEHA].” It is also unlawful to retaliate or otherwise discriminate against a person for requesting an accommodation for religious practice or disability, regardless of whether the request was granted. (Gov. Code, § 12940(l)(4) [religious practice], (m)(2) [disability].)

Read the first option for element 2 if there is no dispute as to whether the employer’s acts constituted an adverse employment action. Read the second option and also give CACI No. 2509, “Adverse Employment Action” Explained, if whether there was an adverse employment action is a question of fact for the jury. For example, the case may involve a pattern of employer harassment consisting of acts that might not individually be sufficient to constitute retaliation, but taken as a whole establish prohibited conduct. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052–1056 [32 Cal.Rptr.3d 436, 116 P.3d 1123].) Give both the first and second options if the employee presents evidence supporting liability under both a sufficient-single-act theory or a pattern-of-harassment theory. (See, e.g., Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 423–424 [69 Cal.Rptr.3d 1].) Also select “conduct” in element 3 if the second option or both the first and second options are included for element 2.

Retaliation in violation of the FEHA may be established by constructive discharge; that is, that the employer intentionally created or knowingly permitted working conditions to exist that were so intolerable that a reasonable person in the employee’s position would have had no reasonable alternative other than to resign. (See Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1253 [76 Cal.Rptr.3d 632].) If constructive discharge is alleged, give the third option for element 2 and also give CACI No. 2510, “Constructive Discharge” Explained. Also select “conduct” in element 3 if the third option is included for element 2.

Element 3 requires that the protected activity be a substantial motivating reason for the retaliatory acts. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 479 [161 Cal.Rptr.3d 758]; see also CACI No. 2507, “Substantial Motivating Reason” Explained.)

Note that there are two causation elements. There must be a causal link between the retaliatory animus and the adverse action (see element 3), and there must be a causal link between the adverse action and damages (see element 5). (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 [81 Cal.Rptr.3d 406].)

This instruction has been criticized in dictum because it is alleged that there is no element requiring retaliatory intent. (See Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1229–1231 [136 Cal.Rptr.3d 472].) The court urged the Judicial Council to redraft the instruction and the corresponding special verdict form so as to clearly state that retaliatory intent is a necessary element of a retaliation claim under FEHA.

The jury in the case was instructed per element 3 “that Richard Joaquin’s reporting that he had been sexually harassed was a motivating reason for the City of Los Angeles’ decision to terminate Richard Joaquin’s employment or deny Richard Joaquin promotion to the rank of sergeant.” The committee believes that the instruction as given is correct for the intent element in a retaliation case. (Cf. Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 127–132 [199 Cal.Rptr.3d 462] [for disability discrimination, “substantial motivating reason” is only language required to express intent].) However, in cases such as Joaquin that involve allegations of a prohibited motivating reason (based on a report of sexual harassment) and a permitted motivating reason (based on a good faith belief that the report was falsified), the instruction may need to be modified to make it clear that plaintiff must prove that defendant acted based on the prohibited motivating reason and not the permitted motivating reason.

Sources and Authority

Retaliation Prohibited Under Fair Employment and Housing Act. Government Code section 12940(h).

Retaliation for Requesting Reasonable Accommodation for Religious Practice and Disability Prohibited. Government Code section 12940(l)(4), (m)(2).

“Person” Defined Under Fair Employment and Housing Act. Government Code section 12925(d).

Prohibited Retaliation. Title 2 California Code of Regulations section 11021.

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘ “ ‘drops out of the picture,’ ” ’ and the burden shifts back to the employee to prove intentional retaliation.” (Yanowitz, supra, 36 Cal.4th at p. 1042, internal citations omitted.)

“Actions for retaliation are ‘inherently fact-driven’; it is the jury, not the court, that is charged with determining the facts.” (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 299 [156 Cal.Rptr.3d 851].)

“It is well established that a plaintiff in a retaliation case need only prove that a retaliatory animus was at least a substantial or motivating factor in the adverse employment decision.” (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1492 [102 Cal.Rptr.3d 431].)

“Retaliation claims are inherently fact-specific, and the impact of an employer’s action in a particular case must be evaluated in context. Accordingly, although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Yanowitz, supra, 36 Cal.4th at p. 1052.)

“Contrary to [defendant]’s assertion that it is improper to consider collectively the alleged retaliatory acts, there is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries. Enforcing a requirement that each act separately constitute an adverse employment action would subvert the purpose and intent of the statute.” (Yanowitz, supra, 36 Cal.4th at pp. 1055–1056, internal citations omitted.)

“[U]nder certain circumstances, a retaliation claim may be brought by an employee who has complained of or opposed conduct, even when a court or jury subsequently determines the conduct actually was not prohibited by the FEHA. Indeed, this precept is well settled. An employee is protected against retaliation if the employee reasonably and in good faith believed that what he or she was opposing constituted unlawful employer conduct such as sexual harassment or sexual discrimination.” (Miller v. Department of Corr. (2005) 36 Cal.4th 446, 473–474 [30 Cal.Rptr.3d 797, 115 P.3d 77], internal citations omitted.)

“Clearly, section 12940, subdivision (h) encompasses a broad range of protected activity. An employee need not use specific legal terms or buzzwords in opposing discrimination. Nor is it necessary for an employee to file a formal charge. The protected activity element may be established by evidence that the plaintiff threatened to file a discrimination charge, by a showing that the plaintiff mistakenly, but reasonably and sincerely believed he was opposing discrimination, or by evidence an employer believed the plaintiff was a potential witness in another employee’s FEHA action.” (Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 652 [163 Cal.Rptr.3d 392], internal citations and footnote omitted.)

“ ‘Standing alone, an employee’s unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation, where there is no evidence the employer knew that the employee’s opposition was based upon a reasonable belief that the employer was engaging in discrimination.’  ‘[C]omplaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct.’ [¶] But employees need not explicitly and directly inform their employer that they believe the employer’s conduct was discriminatory or otherwise forbidden by FEHA.” (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1046 [207 Cal.Rptr.3d 120], internal citation omitted.)

“The relevant question … is not whether a formal accusation of discrimination is made but whether the employee’s communications to the employer sufficiently convey the employee’s reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner.” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1193 [220 Cal.Rptr.3d 42].)

“Notifying one’s employer of one’s medical status, even if such medical status constitutes a ‘disability’ under FEHA, does not fall within the protected activity identified in subdivision (h) of section 12940—i.e., it does not constitute engaging in opposition to any practices forbidden under FEHA or the filing of a complaint, testifying, or assisting in any proceeding under FEHA.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 247 [206 Cal.Rptr.3d 841].)

“[Plaintiff]’s advocacy for the disabled community and opposition to elimination of programs that might benefit that community do not fall within the definition of protected activity. [Plaintiff] has not shown the [defendant]’s actions amounted to discrimination against disabled citizens, but even if they could be so construed, discrimination by an employer against members of the general public is not a prohibited employment practice under the FEHA.” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 383 [209 Cal.Rptr.3d 809], original italics.)

“Moreover, [defendant]’s actions had a substantial and material impact on the conditions of employment. The refusal to promote [plaintiff] is an adverse employment action under FEHA. There was also a pattern of conduct, the totality of which constitutes an adverse employment action. This includes undeserved negative job reviews, reductions in his staff, ignoring his health concerns and acts which caused him substantial psychological harm.” (Wysinger, supra, 157 Cal.App.4th at p. 424, internal citations omitted.)

“A long period between an employer’s adverse employment action and the employee’s earlier protected activity may lead to the inference that the two events are not causally connected. But if between these events the employer engages in a pattern of conduct consistent with a retaliatory intent, there may be a causal connection.” (Wysinger, supra, 157 Cal.App.4th at p. 421, internal citation omitted.)

“Both direct and circumstantial evidence can be used to show an employer’s intent to retaliate. ‘Direct evidence of retaliation may consist of remarks made by decisionmakers displaying a retaliatory motive.’ Circumstantial evidence typically relates to such factors as the plaintiff’s job performance, the timing of events, and how the plaintiff was treated in comparison to other workers.” (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153 [119 Cal.Rptr.2d 131], internal citations omitted.)

“The retaliatory motive is ‘proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter.’ ‘The causal link may be established by an inference derived from circumstantial evidence, “such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.” ’ ” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615 [262 Cal.Rptr. 842], internal citations omitted.)

“[A]n employer generally can be held liable for the retaliatory actions of its supervisors.” (Wysinger, supra, 157 Cal.App.4th at p. 420.)

“Plaintiff, although a partner, is a person whom section 12940, subdivision (h) protects from retaliation for opposing the partnership-employer’s harassment against those employees.” (Fitzsimons v. California Emergency Physicians Medical Group (2012) 205 Cal.App.4th 1423, 1429 [141 Cal.Rptr.3d 265].)

“[A]n employer may be found to have engaged in an adverse employment action, and thus liable for retaliation under section 12940(h), ‘by permitting … fellow employees to punish [him] for invoking [his] rights.’ We therefore hold that an employer may be held liable for coworker retaliatory conduct if the employer knew or should have known of coworker retaliatory conduct and either participated and encouraged the conduct, or failed to take reasonable actions to end the retaliatory conduct.” (Kelley v. The Conco Cos. (2011) 196 Cal.App.4th 191, 213 [126 Cal.Rptr.3d 651], internal citation omitted.)

“[T]he employer is liable for retaliation under section 12940, subdivision (h), but nonemployer individuals are not personally liable for their role in that retaliation.” (Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173 [72 Cal.Rptr.3d 624, 177 P.3d 232].)

“ ‘The legislative purpose underlying FEHA’s prohibition against retaliation is to prevent employers from deterring employees from asserting good faith discrimination complaints … .’ Employer retaliation against employees who are believed to be prospective complainants or witnesses for complainants undermines this legislative purpose just as effectively as retaliation after the filing of a complaint. To limit FEHA in such a way would be to condone ‘an absurd result’ that is contrary to legislative intent. We agree with the trial court that FEHA protects employees against preemptive retaliation by the employer.” (Steele, supra, 162 Cal.App.4th at p. 1255, internal citations omitted.)

“ ‘The plaintiff’s burden is to prove, by competent evidence, that the employer’s proffered justification is mere pretext; i.e., that the presumptively valid reason for the employer’s action was in fact a coverup. … In responding to the employer’s showing of a legitimate reason for the complained-of action, the plaintiff cannot “ ‘simply show the employer’s decision was wrong, mistaken, or unwise. Rather, the employee ‘ “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” … and hence infer “that the employer did not act for the [asserted] non-discriminatory reasons.” ’ ” ’ ” (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1409 [194 Cal.Rptr.3d 689].)

“The showing of pretext, while it may indicate retaliatory intent or animus, is not the sole means of rebutting the employer’s evidence of nonretaliatory intent. ‘ “While ‘pretext’ is certainly a relevant issue in a case of this kind, making it a central or necessary issue is not sound. The central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus. The employer’s mere articulation of a legitimate reason for the action cannot answer this question; it can only dispel the presumption of improper motive that would otherwise entitle the employee to a judgment in his favor.” ’ ” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 94 [221 Cal.Rptr.3d 668], original italics.)

“Government Code section 12940, subdivision (h), does not shield an employee against termination or lesser discipline for either lying or withholding information during an employer’s internal investigation of a discrimination claim. In other words, public policy does not protect deceptive activity during an internal investigation. Such conduct is a legitimate reason to terminate an at-will employee.” (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1528 [152 Cal.Rptr.3d 154], footnotes omitted.)

“Although appellant does not argue she was constructively discharged, such a claim is not necessary to find unlawful retaliation.” (McCoy, supra, 216 Cal.App.4th at p. 301.)

“The phrase ‘because of’ [in Gov. Code, § 12940(a)] is ambiguous as to the type or level of intent (i.e., motivation) and the connection between that motivation and the decision to treat the disabled person differently. This ambiguity is closely related to [defendant]’s argument that it is liable only if motivated by discriminatory animus. [¶] The statutory ambiguity in the phrase ‘because of” was resolved by our Supreme Court about six months after the first jury trial [in Harris, supra, 56 Cal.4th at p. 203].” (Wallace, supra, 245 Cal.App.4th at p. 127.)

“ ‘[W]hile discrimination may be carried out by means of speech, such as a written notice of termination, and an illicit animus may be evidenced by speech, neither circumstance transforms a discrimination suit to one arising from speech. What gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden, on account of a discriminatory or retaliatory consideration.’ ” (Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 772 [244 Cal.Rptr.3d 238].)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1028, 1052–1054
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment And Housing Act, ¶¶ 7:121–7:205 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, §§ 2.83–2.88
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.131 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.37, 115.94 (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 2:74–2:75 (Thomson Reuters)