CACI 2620 CFRA Rights Retaliation—Essential Factual Elements (Gov. Code, § 12945.2(k))

California Civil Jury Instructions CACI

2620 CFRA Rights Retaliation—Essential Factual Elements (Gov. Code, § 12945.2(k))

[Name of plaintiff] claims that [name of defendant] retaliated against [him/her/nonbinary pronoun] for [[requesting/taking] [family care/medical] leave/[other protected activity]]. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of plaintiff] was eligible for [family care/medical] leave;

2.That [name of plaintiff] [[requested/took] [family care/medical] leave/[other protected activity]];

3.That [name of defendant] [discharged/[other adverse employment action]] [name of plaintiff];

4.That [name of plaintiff]’s [[request for/taking of] [family care/medical] leave/[other protected activity]] was a substantial motivating reason for [discharging/[other adverse employment action]] [him/her/nonbinary pronoun];

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

6.That [name of defendant]’s retaliatory conduct was a substantial factor in causing [name of plaintiff]’s harm.

New September 2003; Revised December 2012, June 2013, May 2018, May 2021

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Directions for Use

Use this instruction in cases of alleged retaliation for an employee’s exercise of rights granted by the California Family Rights Act (CFRA). (See Gov. Code, § 12945.2(k).) The instruction assumes that the defendant is plaintiff’s present or former employer, and therefore it must be modified if the defendant is a prospective employer or other person.

The “other protected activity” option of the opening paragraph and elements 2 and 4 could be providing information or testimony in an inquiry or a proceeding related to CFRA rights. (Gov. Code, § 12945.2(k).

The CFRA reaches a broad range of adverse employment actions short of actual discharge. (See Gov. Code, § 12945.2(k).) Element 3 may be modified to allege constructive discharge or adverse acts other than actual discharge. See CACI No. 2509, “Adverse Employment Action” Explained, and CACI No. 2510, “Constructive Discharge” Explained, for instructions under the Fair Employment and Housing Act that may be adapted for use with this instruction.

Element 4 uses the term “substantial motivating reason” to express both intent and causation between the employee’s exercise of a CFRA right and the adverse employment action. “Substantial motivating reason” has been held to be the appropriate standard under the discrimination prohibitions of the Fair Employment and Housing Act to address the possibility of both discriminatory and nondiscriminatory motives. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507, “Substantial Motivating Reason” Explained.) Whether this standard applies to CFRA retaliation cases has not been addressed by the courts.

Sources and Authority

Retaliation Prohibited Under California Family Rights Act. Government Code section 12945.2(k), (q).

Retaliation Prohibited Under Fair Employment and Housing Act. Government Code section 12940(h).

“The elements of a cause of action for retaliation in violation of CFRA are “ ‘(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA [leave]; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA [leave].” ’ ” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 604 [210 Cal.Rptr.3d 59].)

“Similar to causes of action under FEHA, the McDonnell Douglas burden shifting analysis applies to retaliation claims under CFRA.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 248 [206 Cal.Rptr.3d 841].)

“ ‘When an adverse employment action “follows hard on the heels of protected activity, the timing often is strongly suggestive of retaliation.” ’ ” (Bareno v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 571 [212 Cal.Rptr.3d 682].)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1058–1060
Chin et al., California Practice Guide: Employment Litigation, Ch. 12-B, Family And Medical Leave Act (FMLA)/California Family Rights Act (CFRA), ¶¶ 12:1300, 12:1301 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Other Employee Rights Statutes, §§ 4.18–4.20
1 Wilcox, California Employment Law, Ch. 8, Leaves of Absence, § 8.32 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.37[3][c] (Matthew Bender)