CACI 2525 Harassment—Supervisor Defined (Gov. Code, § 12926(t))

California Civil Jury Instructions CACI

2525 Harassment—“Supervisor” Defined (Gov. Code, § 12926(t))

[Name of alleged harasser] was a supervisor of [name of defendant] if [he/she/nonbinary pronoun] had any of the following:

a.The authority to hire, transfer, promote, assign, reward, discipline, [or] discharge [or] [insert other employment action] [name of plaintiff] [or effectively to recommend any of these actions];

b.The responsibility to act on [name of plaintiff]’s grievances [or effectively to recommend action on grievances]; or

c.The responsibility to direct [name of plaintiff]’s daily work activities.

[Name of alleged harasser]’s exercise of this authority or responsibility must not be merely routine or clerical, but must require the use of independent judgment.

Directions for Use

The FEHA’s definition of “supervisor” refers to the “authority” for factor (a) and the “responsibility” for factors (b) and (c). The difference, if any, between “authority” and “responsibility” as used in the statute is not clear. The statute further requires that “the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” (See Gov. Code, § 12926(t) [emphasis added].) However, at least one court has found the independent-judgment requirement to be applicable to the responsibility for factor (c). (See Chapman v. Enos (2004) 116 Cal.App.4th 920, 930–931 [10 Cal.Rptr.3d 852] [emphasis added].) Therefore, the last sentence of the instruction refers to “authority or responsibility.”

Sources and Authority

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

“Supervisor” Defined. Government Code section 12926(t).

“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 Services v. Superior Court (2003) 31 Cal. 4th 1026, 1040–1041 [6 Cal. Rptr. 3d 441, 79 P.3d 556], internal citations omitted.)

“Unlike discrimination in hiring, the ultimate responsibility for which rests with the employer, sexual or other harassment perpetrated by a supervisor with the power to hire, fire and control the victimized employee’s working conditions is a particularly personal form of the type of discrimination which the Legislature sought to proscribe when it enacted the FEHA.” (Matthews v. Superior Court (1995) 34 Cal.App.4th 598, 605–606 [40 Cal.Rptr.2d 350].)

“This section has been interpreted to mean that the employer is strictly liable for the harassing actions of its supervisors and agents, but that the employer is only liable for harassment by a coworker if the employer knew or should have known of the conduct and failed to take immediate corrective action. Thus, characterizing the employment status of the harasser is very significant.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1046 [58 Cal.Rptr.2d 122], internal citations omitted.)

“The case and statutory authority set forth three clear rules. First, … a supervisor who personally engages in sexually harassing conduct is personally liable under the FEHA. Second, … if the supervisor participates in the sexual harassment or substantially assists or encourages continued harassment, the supervisor is personally liable under the FEHA as an aider and abettor of the harasser. Third, under the FEHA, the employer is vicariously and strictly liable for sexual harassment by a supervisor.” (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1327 [58 Cal.Rptr.2d 308].)

“[W]hile an employer’s liability under the [FEHA] for an act of sexual harassment committed by a supervisor or agent is broader than the liability created by the common law principle of respondeat superior, respondeat superior principles are nonetheless relevant in determining liability when, as here, the sexual harassment occurred away from the workplace and not during work hours.” (Doesupra, 50 Cal.App.4th at pp. 1048–1049.)

“The FEHA does not define ‘agent.’ Therefore, it is appropriate to consider general principles of agency law. An agent is one who represents a principal in dealings with third persons. An agent is a person authorized by the principal to conduct one or more transactions with one or more third persons and to exercise a degree of discretion in effecting the purpose of the principal. A supervising employee is an agent of the employer.” (Fiolsupra, 50 Cal.App.4th at p. 1328, internal citations omitted.)

“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.” (Fiolsupra, 50 Cal.App.4th at p. 1331.)

“[W]hile full accountability and responsibility are certainly indicia of supervisory power, they are not required elements of … the FEHA definition of supervisor. Indeed, many supervisors with responsibility to direct others using their independent judgment, and whose supervision of employees is not merely routine or clerical, would not meet these additional criteria though they would otherwise be within the ambit of the FEHA supervisor definition.” (Chapman, supra, 116 Cal.App.4th at p. 930, footnote omitted.)

“Defendants take the position that the court’s modified instruction is, nonetheless, accurate because the phrase ‘responsibility to direct’ is the functional equivalent of being ‘fully accountable and responsible for the performance and work product of the employees. …’ In this, they rely on the dictionary definition of ‘responsible’ as ‘marked by accountability.’ But as it relates to the issue before us, this definition is unhelpful for two reasons. First, one can be accountable for one’s own actions without being accountable for those of others. Second, the argument appears to ignore the plain language of the statute which itself defines the circumstances under which the exercise of the responsibility to direct will be considered supervisory, i.e., ‘if … [it] is not of a merely routine or clerical nature, but requires the use of independent judgment.’ ” (Chapman, supra, 116 Cal.App.4th at pp. 930–931.)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources Of Law Prohibiting Harassment, ¶ 10:17 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-D, Employer Liability For Workplace Harassment, ¶¶ 10:308, 10:310, 10:315–10:317, 10:321, 10:322 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-E, Harasser’s Individual Liability, ¶ 10:499 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual and Other Harassment, § 3.21
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.81 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.20, 115.36, 115.54 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:56.50 (Thomson Reuters)