CACI 2527 Failure to Prevent Harassment, Discrimination, or Retaliation—Essential Factual Elements—Employer or Entity Defendant (Gov. Code, § 12940(k))

California Civil Jury Instructions CACI

2527 Failure to Prevent Harassment, Discrimination, or Retaliation—Essential Factual Elements—Employer or Entity Defendant (Gov. Code, § 12940(k))

[Name of plaintiff] claims that [name of defendant] failed to take all reasonable steps to prevent [harassment/discrimination/retaliation] [based on [describe protected status—e.g., race, gender, or age]]. 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 under a contract with [name of defendant]];

2.That [name of plaintiff] was subjected to [harassment/discrimination/retaliation] in the course of employment;

3.That [name of defendant] failed to take all reasonable steps to prevent the [harassment/discrimination/retaliation];

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

5.That [name of defendant]’s failure to take all reasonable steps to prevent [harassment/discrimination/retaliation] was a substantial factor in causing [name of plaintiff]’s harm.

Directions for Use

Give this instruction after the appropriate instructions in this series on the underlying claim for discrimination, retaliation, or harassment if the employee also claims that the employer failed to prevent the conduct. (See Gov. Code, § 12940(k).) Read the bracketed language in the opening paragraph beginning with “based on” if the claim is for failure to prevent harassment or discrimination.

For guidance for a further instruction on what constitutes “reasonable steps,” see section 11019(b)(4) of Title 2 of the California Code of Regulations.

Sources and Authority

Prevention of Discrimination and Harassment. Government Code section 12940(k).

“The employer’s duty to prevent harassment and discrimination is affirmative and mandatory.” (Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035 [127 Cal.Rptr.2d 285].)

“Once an employer is informed of the sexual harassment, the employer must take adequate remedial measures. The measures need to include immediate corrective action that is reasonably calculated to (1) end the current harassment and (2) to deter future harassment. [Citation.] The employer’s obligation to take prompt corrective action requires (1) that temporary steps be taken to deal with the situation while the employer determines whether the complaint is justified and (2) that permanent remedial steps be implemented by the employer to prevent future harassment … .” (M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693, 701 [224 Cal.Rptr.3d 542].)

“This section creates a tort that is made actionable by statute. ‘ “ ‘[T]he word “tort” means a civil wrong, other than a breach of contract, for which the law will provide a remedy in the form of an action for damages.’ ‘It is well settled the Legislature possesses a broad authority … to establish … tort causes of action.’ Examples of statutory torts are plentiful in California law.” ’ Section 12960 et seq. provides procedures for the prevention and elimination of unlawful employment practices. In particular, section 12965, subdivision (a) authorizes the Department of Fair Employment and Housing (DFEH) to bring an accusation of an unlawful employment practice if conciliation efforts are unsuccessful, and section 12965, subdivision (b) creates a private right of action for damages for a complainant whose complaint is not pursued by the DFEH.” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286 [73 Cal.Rptr.2d 596], internal citations omitted.)

“With these rules in mind, we examine the section 12940 claim and finding with regard to whether the usual elements of a tort, enforceable by private plaintiffs, have been established: Defendants’ legal duty of care toward plaintiffs, breach of duty (a negligent act or omission), legal causation, and damages to the plaintiff.” (Trujillo, supra, 63 Cal.App.4th at pp. 286–287, internal citation omitted.)

“[W]hether an employer sufficiently complied with its mandate to ‘take immediate and appropriate corrective action’ is a question of fact.” (M.F.supra, 16 Cal.App.5th at p. 703, internal citation omitted.)

“[C]ourts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k).” (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314 [184 Cal.Rptr.3d 774].)

“Also, there is a significant question of how there could be legal causation of any damages (either compensatory or punitive) from such a statutory violation, where the only jury finding was the failure to prevent actionable harassment or discrimination, which, however, did not occur.” (Trujillo, supra, 63 Cal.App.4th at p. 289.)

“[T]he ‘Directions for Use’ to CACI No. 2527 (2015), … states that the failure to prevent instruction should be given ‘after the appropriate instructions in this series on the underlying claim for … harassment if the employee also claims that the employer failed to prevent the conduct.’ An instruction on the elements of an underlying sexual harassment claim would be unnecessary if the failure to take reasonable steps necessary to prevent a claim for harassment could be based on harassing conduct that was not actionable harassment.” (Dickson, supra, 234 Cal.App.4th at p. 1317.)

“In accordance with …  the fundamental public policy of eliminating discrimination in the workplace under the FEHA, we conclude that retaliation is a form of discrimination actionable under [Gov. Code] section 12940, subdivision (k).” (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1240 [51 Cal.Rptr.3d 206], disapproved on other grounds in Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158 [72 Cal.Rptr.3d 624, 177 P.3d 232].)

“[Defendant] suggests that a separate element in CACI No. 2527 requiring [plaintiff] to prove that the failure to prevent discrimination or retaliation was ‘a substantial factor in causing her harm’ is equivalent to the disputed element in the other CACI instructions requiring [plaintiff] to prove that her pregnancy-related leave was ‘a motivating reason’ for her discharge. However, the ‘substantial factor in causing harm’ element in CACI No. 2527 does not concern the causal relationship between the adverse employment action and the plaintiff’s protected status or activity. Rather, it concerns the causal relationship between the discriminatory or retaliatory conduct, if proven, and the plaintiff’s injury.” (Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 480 [161 Cal.Rptr.3d 758].)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1025, 1026
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment and Housing Act, ¶¶ 7:670–7:672 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.02[6], 41.80[1], 41.81[7] (Matthew Bender)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[10][g] (Matthew Bender)