CACI 2522C Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Individual Defendant (Gov. Code, §§ 12923, 12940(j))
California Civil Jury Instructions CACI
2522C Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Individual 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 employer] 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 these 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 employer];
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 work environment to be hostile, intimidating, offensive, oppressive, or abusive because of the sexual favoritism;
5.That [name of plaintiff] considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive because of the sexual favoritism;
6.That [name of defendant] [participated in/assisted/ [or] encouraged] the sexual favoritism;
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. 2522 December 2007; Revised December 2015, May 2018, July 2019, May 2020
Directions for Use
This instruction is for use in a hostile work environment case involving sexual favoritism when the defendant is an individual such as the alleged harasser or plaintiff’s coworker. For an employer defendant, see CACI No. 2521C, Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Employer or Entity 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. 2522A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Individual Defendant. For an instruction for use if the plaintiff is not the target of the harassment, see CACI No. 2522B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Individual Defendant. Also read CACI No. 2523, “Harassing Conduct” Explained, and CACI No. 2524, “Severe or Pervasive” Explained.
If there are both employer and individual supervisor defendants (see CACI No. 2521C, Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Employer or Entity 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).
•Personal Liability for Harassment. Government Code section 12940(j)(3).
•“Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
•Harassment Because of Sex. Government Code section 12940(j)(4)(C).
•Person Providing Services Under Contract. Government Code section 12940(j)(5).
•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].)
•“[W]e conclude a nonharassing supervisor, who fails to take action to prevent sexual harassment, is not personally liable for sexual harassment under the Fair Employment and Housing Act (FEHA).” (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1322 [58 Cal.Rptr.2d 308].)
•“A supervisor who, without more, fails to take action to prevent sexual harassment of an employee is not personally liable as an aider and abettor of the harasser, an aider and abettor of the employer or an agent of the employer.” (Fiol, supra, 50 Cal.App.4th at p. 1331.)