California Jury Instruction CACI 2523 “Harassing Conduct” Explained

New September 2003; Revised December 2007, December 2015

Nakase Wade | California Business Lawyers & Corporate Lawyers

Read this instruction with CACI No. 2521A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant; CACI No. 2521B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Employer or Entity Defendant; CACI No. 2522A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Individual Defendant; or CACI No. 2522B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Individual Defendant. Read also CACI No. 2524, “Severe or Pervasive” Explained, if appropriate.

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

•“Harassment” Defined. Cal. Code Regs., tit. 2, § 11019(b)(2).

•“Harassment is distinguishable from discrimination under the FEHA. ‘[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.’ ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869 [172 Cal.Rptr.3d 732].)

•“[H]arassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job.” (Reno v. Baird (1998) 18 Cal.4th 640, 645–646 [76 Cal.Rptr.2d 499, 957 P.2d 1333], internal citations omitted.)

•“No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives of personnel management. Every supervisory employee can insulate himself or herself from claims of harassment by refraining from such conduct.” (Serri, supra, 226 Cal.App.4th at p. 869.)

•“We conclude, therefore, that the Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These are actions of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management. This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA.” (Reno, supra, 18 Cal.4th at pp. 646–647, internal citation omitted.)

•“[W]e can discern no reason why an employee who is the victim of discrimination based on some official action of the employer cannot also be the victim of harassment by a supervisor for abusive messages that create a hostile working environment, and under the FEHA the employee would have two separate claims of injury.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707 [101 Cal.Rptr.3d 773, 219 P.3d 749].)

•“Here, [plaintiff]’s discrimination claim sought compensation for official employment actions that were motivated by improper bias. These discriminatory actions included not only the termination itself but also official employment actions that preceded the termination, such as the progressive disciplinary warnings and the decision to assign [plaintiff] to answer the office telephones during office parties. [Plaintiff]’s harassment claim, by contrast, sought compensation for hostile social interactions in the workplace that affected the workplace environment because of the offensive message they conveyed to [plaintiff]. These harassing actions included [supervisor]’s demeaning comments to [plaintiff] about her body odor and arm sores, [supervisor]’s refusal to respond to [plaintiff]’s greetings, [supervisor]’s demeaning facial expressions and gestures toward [plaintiff], and [supervisor]’s disparate treatment of [plaintiff] in handing out small gifts. None of these events can fairly be characterized as an official employment action. None involved [supervisor]’s exercising the authority that [employer] had delegated to her so as to cause [employer], in its corporate capacity, to take some action with respect to [plaintiff]. Rather, these were events that were unrelated to [supervisor]’s managerial role, engaged in for her own purposes.” (Roby, supra, 47 Cal.4th at pp. 708–709, original italics, footnote omitted.)

•“[S]ome official employment actions done in furtherance of a supervisor’s managerial role can also have a secondary effect of communicating a hostile message. This occurs when the actions establish a widespread pattern of bias. Here, some actions that [supervisor] took with respect to [plaintiff] are best characterized as official employment actions rather than hostile social interactions in the workplace, but they may have contributed to the hostile message that [supervisor] was expressing to [plaintiff] in other, more explicit ways. These would include [supervisor]’s shunning of [plaintiff] during staff meetings, [supervisor]’s belittling of [plaintiff]’s job, and [supervisor]’s reprimands of [plaintiff] in front of [plaintiff]’s coworkers. Moreover, acts of discrimination can provide evidentiary support for a harassment claim by establishing discriminatory animus on the part of the manager responsible for the discrimination, thereby permitting the inference that rude comments or behavior by that same manager were similarly motivated by discriminatory animus.” (Roby, supra, 47 Cal.4th at p. 709.)

•“[A]busive conduct that is not facially sex specific can be grounds for a hostile environment sexual harassment claim if it is inflicted because of gender, i.e., if men and women are treated differently and the conduct is motivated by gender bias.” (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 130 [129 Cal.Rptr.3d 384], original italics.)