Workplace harassment – its in the news, a lot, and it will continue to be in the news. But do people know what they are talking about? Allegations and assertions such as on social media are one thing – legal admissible evidence, causation, proof and damages are different. So . . . as a point of reference, below I have provided some of the legal standards (select California jury instructions) that may apply depending on the facts and circumstances. Best to you, David Tate, Esq.
Example California Civil Jury Instructions Re Harassment – Hostile Work Environment (CACI 2521A, 2523, 2524 and 2505)
Note: the complained of activity must constitute or amount to harassing conduct under the circumstances of the situation; unlawful harassment isn’t just any harassment – the harassment must be based on a protected status; and the harassing conduct must have been severe or pervasive. Also note, although the example jury instruction (CACI 2521A) that I have provided below is based on conduct that is directed specifically at or upon the plaintiff victim, the harassing conduct can be directed at other people if the conduct is otherwise observed or experienced by, or in some other manner affecting the plaintiff. Also note, other related issues can involve, for example, disparate treatment, disparate impact, retaliation, disability discrimination reasonable accommodation and attempt at reasonable accommodation, constructive discharge, battery, available defenses, etc. If you are dealing with issues in these areas, you also need to have a correct understanding of the intent of the law.
2521A. Hostile Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employeror Entity Defendant (Gov. Code, § 12940(j))
[__________ Name of plaintiff] claims that [he/she] was subjected to harassment based on [his/her] [describe protected status, e.g., race, gender, or age] at [__________ name of defendant], causing a hostile or abusive work environment. To establish this claim, [__________ name of plaintiff] must prove all of the following:
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 defendant];
That [__________ name of plaintiff] was subjected to unwanted harassing conduct because [he/she] was [protected status, e.g., a woman];
That the harassing conduct was severe or pervasive;
That a reasonable [e.g., woman] in [__________ name of plaintiff]’s circumstances would have considered the work environment to be hostile or abusive;
That [__________ name of plaintiff] considered the work environment to be hostile or abusive;
[Select applicable basis of defendant’s liability:]
[That a supervisor engaged in the conduct;]
[That [___________ name of defendant] [or [his/her/its] supervisors or agents] knew or should have known of the conduct and failed to take immediate and appropriate corrective action;]
7. That [__________ name of plaintiff] was harmed; and
8. That the conduct was a substantial factor in causing [__________ name of plaintiff]’s harm.
2523. “Harassing Conduct” Explained
Harassing conduct may include, but is not limited to, [any of the following:]
[a. Verbal harassment, such as obscene language, demeaning comments, slurs, [or] threats [or] [describe other form of verbal harassment];] [or]
[b. Physical harassment, such as unwanted touching, assault, or physical interference with normal work or movement;] [or]
[c. Visual harassment, such as offensive posters, objects, cartoons, or drawings;] [or]
[d. Unwanted sexual advances;] [or]
[e. [Describe other form of harassment if appropriate, e.g., derogatory,
unwanted, or offensive photographs, text messages, Internet postings].]
2524. “Severe or Pervasive” Explained
“Severe or pervasive” means conduct that alters the conditions of employment and creates a hostile or abusive work environment.
In determining whether the conduct was severe or pervasive, you should consider all the circumstances. You may consider any or all of the following:
The nature of the conduct;
How often, and over what period of time, the conduct occurred;
The circumstances under which the conduct occurred;
Whether the conduct was physically threatening or humiliating;
The extent to which the conduct unreasonably interfered with an employee’s work performance.
2505. Retaliation—Essential Factual Elements (Gov. Code, §12940(h))
[__________ Name of plaintiff] claims that [__________ name of defendant] retaliated against [him/her] for [describe activity protected by the FEHA]. To establish this claim, [__________ name of plaintiff] must prove all of the following:
That [__________ name of plaintiff] [describe protected activity];
[That [__________ name of defendant] [discharged/demoted/[specify other adverse employment action]] [__________ name of plaintiff];]
[or]
[That [__________ name of defendant] subjected [__________ name of plaintiff] to an adverse employment action;]
[or]
[That [__________ name of plaintiff] was constructively discharged;]
3. That [__________ name of plaintiff]’s [describe protected activity] was a substantial motivating reason for [__________ name of defendant]’s [decision to [discharge/demote/[specify other adverse employment action]]
[__________ name of plaintiff]/conduct];
4. That [__________ name of plaintiff] was harmed; and
5. That [__________ name of defendant]’s decision to [discharge/demote/[specify other adverse employment action]] [__________ name of plaintiff] was a substantial factor in causing [him/her] harm.
[[__________ Name of plaintiff] does not have to prove [discrimination/harassment] in order to be protected from retaliation. If [he/she] [reasonably believed that [__________ name of defendant]’s conduct was unlawful/requested a [disability/religious] accommodation], [he/she] may prevail on a retaliation claim even if [he/she] does not present, or prevail on, a separate claim for [discrimination/harassment/[other]].]
