CACI 2521C Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Employer or Entity Defendant (Gov. Code, §§ 12923, 12940(j))

California Civil Jury Instructions CACI

2521C Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Employer or Entity Defendant (Gov. Code, §§ 12923, 12940(j))

[Name of plaintiff] claims that [he/she/nonbinary pronoun] was subjected to harassment based on sexual favoritism at [name of defendant] and that this harassment created a work environment that was hostile, intimidating, offensive, oppressive, or abusive. “Sexual favoritism” means that another employee has received preferential treatment with regard to promotion, work hours, assignments, or other significant employment benefits or opportunities because of a sexual relationship with an individual representative of the employer who was in a position to grant those preferences.

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 there was sexual favoritism in the work environment;

3.That the sexual favoritism 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 conduct to be hostile, intimidating, offensive, oppressive, or abusive because of the sexual favoritism;

5.That [name of plaintiff] considered the conduct to be hostile, intimidating, offensive, oppressive, or abusive because of the sexual favoritism;

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

[That a supervisor [engaged in the conduct/created the sexual favoritism];]


[That [name of defendant] [or [his/her/nonbinary pronoun/its] supervisors or agents] knew or should have known of the sexual favoritism 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 December 2015, May 2018, July 2019, May 2020

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Directions for Use

This instruction is for use in a hostile work environment case involving sexual favoritism when 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. 2522C, Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Individual Defendant. For a case in which the plaintiff is the target of harassment based on a protected status such as gender, race, or sexual orientation, 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 plaintiff is not the target of the harassment, see CACI No. 2521B, Work Environment Harassment—Conduct Directed at Others—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. 2522C, Work Environment Harassment—Sexual Favoritism—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

Declaration of 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.)

“Following the guidance of the EEOC, and also employing standards adopted in our prior cases, we believe that an employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment.” (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 466 [30 Cal.Rptr.3d 797, 115 P.3d 77], internal citations omitted.)

“[S]exual favoritism by a manager may be actionable when it leads employees to believe that ‘they [can] obtain favorable treatment from [the manager] if they became romantically involved with him’, the affair is conducted in a manner ‘so indiscreet as to create a hostile work environment,’ or the manager has engaged in ‘other pervasive conduct … which created a hostile work environment.’ ” (Miller, supra, 36 Cal.4th at p. 465, internal citations omitted.)

“[A] romantic relationship between a supervisor and an employee does not, without more, give rise to a sexual discrimination or sexual harassment claim either under the FEHA or the public policy of the state.” (Proksel v. Gattis (1996) 41 Cal.App.4th 1626, 1631 [49 Cal.Rptr.2d 322].)

“The FEHA imposes two standards of employer liability for sexual harassment, depending on whether the person engaging in the harassment is the victim’s supervisor or a nonsupervisory coemployee. The employer is liable for harassment by a nonsupervisory employee only if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action. This is a negligence standard. Because the FEHA imposes this negligence standard only for harassment ‘by an employee other than an agent or supervisor’, by implication the FEHA makes the employer strictly liable for harassment by a supervisor.” (State Dept. of Health Servs.supra, 31 Cal.4th at pp. 1040–1041, 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

4 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment, §§ 363, 370
Chin et al., Cal. 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)