CACI 2520 Quid pro quo Sexual Harassment—Essential Factual Elements

California Civil Jury Instructions CACI

2520 Quid pro quo Sexual Harassment—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] subjected [him/her/nonbinary pronoun] to sexual harassment. 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]/applied to [name of defendant] for a job/was a person providing services pursuant to a contract with [name of defendant]];

2.That [name of alleged harasser] made unwanted sexual advances to [name of plaintiff] or engaged in other unwanted verbal or physical conduct of a sexual nature;

3.That terms of employment, job benefits, or favorable working conditions were made contingent, by words or conduct, on [name of plaintiff]’s acceptance of [name of alleged harasser]’s sexual advances or conduct;

4.That at the time of [his/her/nonbinary pronoun] conduct, [name of alleged harasser] was a supervisor or agent for [name of defendant];

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

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

Directions for Use

Employers may be liable for the conduct of certain agents. (See Gov. Code, §§ 12925(d), 12926(d), 12940(j)(1); Reno v. Baird (1998) 18 Cal.4th 640, 648 [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]).

Sources and Authority

Harassment Prohibited Under Fair Employment and Housing Act. Government Code section 12940(j)(1).

“Employer” Defined: Harassment. Government Code section 12940(j)(4)(A).

“Person Providing Services Under Contract: Harassment. Government Code section 12940(j)(5).

Sexual Harassment. Cal. Code Regs., tit. 2, § 11034(f)(1).

“Courts have generally recognized two distinct categories of sexual harassment claims: quid pro quo and hostile work environment. Quid pro quo harassment occurs when submission to sexual conduct is made a condition of concrete employment benefits.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607 [262 Cal.Rptr. 842], internal citation omitted.)

“A cause of action for quid pro quo harassment involves the behavior most commonly regarded as sexual harassment, including, e.g., sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee’s body and the sexual uses to which it could be put. To state a cause of action on this theory, it is sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor’s unwelcome sexual advances.” (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414 [26 Cal.Rptr.2d 116], internal citations omitted.)

“Cases based on threats which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment. The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility … [¶] We do not suggest the terms quid pro quo and hostile work environment are irrelevant to Title VII litigation. To the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII. When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive.” (Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 751, 753–754 [118 S.Ct. 2257, 141 L.Ed.2d 633].)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment And Housing Act, ¶¶ 7:150, 7:166, 7:168–7:169, 7:194 (The Rutter Group)
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, 10:50 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual Harassment, §§ 3.31–3.35
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.81[1][a], [6] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.36[5][b] (Matthew Bender)
California Civil Practice: Employment Litigation § 2:55 (Thomson Reuters)