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

California Civil Jury Instructions CACI

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

[Name of plaintiff] claims that coworkers at [name of defendant] were subjected to harassment based on [describe protected status, e.g., race, gender, or age] and that this harassment created a work environment for [name of plaintiff] 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/a person providing services under a contract with/an unpaid intern with/a volunteer with] [name of defendant];

2.That [name of plaintiff], although not personally subjected to harassing conduct, personally witnessed harassing conduct that took place in [his/her/nonbinary pronoun] immediate work environment;

3.That the harassing conduct was severe or pervasive;

4.That a reasonable [describe member of protected group, e.g., woman] in [name of plaintiff]’s circumstances would have considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive;

5.That [name of plaintiff] considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive toward [e.g., women];

6.[Select applicable basis of defendant’s liability:]

[That a supervisor engaged in the conduct;]


[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;]

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

8.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

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Directions for Use

This instruction is for use in a hostile work environment case if the plaintiff was not the target of the harassing conduct and the defendant is an employer or other entity covered by the FEHA. For an individual defendant, such as the alleged harasser or plaintiff’s coworker, see CACI No. 2522B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Individual Defendant. For a case in which the plaintiff is the target of the harassment, see CACI No. 2521A, Work Environment Harassment—Conduct Directed at Plaintiff—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.

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. 2522B, Work Environment Harassment—Conduct Directed at Others—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 Dep’t. 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).

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

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

Harassment Because of Sex. Government Code section 12940(j)(4)(C).

Aiding and Abetting Fair Employment and Housing Act Violations. Government Code section 12940(i).

Perception and Association. Government Code section 12926(o).

“The elements [of a prima facie claim of hostile-environment sexual harassment] are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608 [262 Cal.Rptr. 842], footnote omitted.)

“[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.)

“The plaintiff’s work environment is affected not only by conduct directed at herself but also by the treatment of others. A woman’s perception that her work environment is hostile to women will obviously be reinforced if she witnesses the harassment of other female workers.” (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 519 [76 Cal.Rptr.2d 547], internal citations omitted.)

“Harassment against others in the workplace is only relevant to the plaintiff’s case if she has personal knowledge of it. Unless plaintiff witnesses the conduct against others, or is otherwise aware of it, that conduct cannot alter the conditions of her employment and create an abusive working environment. Stated another way, a reasonable person in plaintiff’s position would not find the environment hostile or abusive unless that person had knowledge of the objectionable conduct toward others.” (Beyda, supra, 65 Cal.App.4th at p. 520.)

“To state that an employee must be the direct victim of the sexually harassing conduct is somewhat misleading as an employee who is subjected to a hostile work environment is a victim of sexual harassment even though no offensive remarks or touchings are directed to or perpetrated upon that employee. Generally, however, sexual conduct that involves or is aimed at persons other than the plaintiff is considered less offensive and severe than conduct that is directed at the plaintiff. A hostile work environment sexual harassment claim by a plaintiff who was not personally subjected to offensive remarks and touchings requires ‘an even higher showing’ than a claim by one who had been sexually harassed without suffering tangible job detriment: such a plaintiff must ‘establish that the sexually harassing conduct permeated [her] direct work environment.’ [¶] To meet this burden, the plaintiff generally must show that the harassment directed at others was in her immediate work environment, and that she personally witnessed it. The reason for this is obvious: if the plaintiff does not witness the incidents involving others, ‘those incidents cannot affect … her perception of the hostility of the work environment.’ ” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 284–285 [42 Cal.Rptr.3d 2, 132 P.3d 211], internal citations omitted.)

“[U]nder the FEHA, an employer is strictly liable for all acts of sexual harassment by a supervisor. (State Dep’t. of Health Servs.supra, 31 Cal.4th at p. 1041, original italics.)

“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 Servs.supra, 31 Cal.4th at p. 1041, original italics.)

“[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].)

“In order to be actionable, it must be shown that respondents knew, or should have known, of the alleged harassment and failed to take appropriate action.” (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 294 [156 Cal.Rptr.3d 851].)

“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.)

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, 3.21, 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)