The California Court of Appeal recently highlighted a fundamental flaw in the California Civil Jury Instructions (“CACI”) on a cause of action for retaliation in violation of the Fair Employment and Housing Act (“FEHA”).  The instruction is missing the element of retaliatory intent or animus.  This flaw has not been brought to the forefront previously because it would only be found in unusual circumstances such as those that were presented to the Court in Joaquin v. City of Los Angeles.  However, this also highlights the same fundamental flaw in another CACI instruction, particularly, disability discrimination. 

In Joaquin, a police officer was terminated following an evidentiary hearing by an independent review board which found that the officer made a knowing false accusation against his sergeant of sexual harassment. A superior court later ordered the officer reinstated finding that the review board’s decision was not supported by substantial evidence. 

The officer then filed a lawsuit alleging that the City terminated him in retaliation for making the complaint of sexual harassment, a violation of FEHA.  The jury was given the standard CACI No. 2505 instruction on retaliation which requires a verdict in favor of the plaintiff if: (1) the plaintiff made a complaint of harassment; (2) the plaintiff was subjected to an adverse employment action; (3) the complaint of harassment was a motivating reason for the adverse employment action; (4) plaintiff was harmed; and (5) the adverse employment action was a substantial factor in causing plaintiff’s harm.  

Because of this jury instruction, the City all but admitted the essential elements of the cause of action. As a result, the jury had no choice but to return a verdict in favor of the officer.  The City appealed and the Court of Appeal reversed, finding that the jury’s verdict was not supported by substantial evidence because there was no evidence that the City’s decision to terminate the  officer was intended to retaliate against him for making a complaint of harassment.  Rather, the independent board of review, after conducting an evidentiary hearing, had an honest, good faith belief that the officer lied about the allegations against his sergeant. This qualified as a legitimate, nonretaliatory reason for the officer’s termination, defeating the plaintiff’s cause of action. 

It was here the appellate court astutely noted that “retaliatory intent is an essential element of a cause of action for unlawful retaliation under FEHA.  However, the element is not identified in the CACI retaliation instruction.”    Thus, had the jury been asked whether the independent review board’s decision was motivated by the intent to retaliate against the officer for making a complaint of harassment, it most likely would have reached a contrary conclusion. 

While intent is an essential element of a cause of action for unlawful retaliation, it undoubtedly is also an essential element of a cause of action for discrimination.  In a thorough discussion of the relevance of discriminatory intent, one court stated, “[t]he defendant’s discriminatory mental state is crucial.”  For that reason, the CACI instruction on discrimination, particularly disability discrimination, is similarly flawed.  

Consider the following hypothetical:  Your employee is giving you reason to doubt her fitness for duty.  You send the employee for a fitness for duty exam. Your agency’s doctor finds the employee unable to perform the essential functions of the job because of a physical condition. After you exhaust the interactive process, you separate the employee because she is unable to perform the essential functions of the job with or without a reasonable accommodation and no other accommodation is feasible. Generally, under FEHA, if an employee has a physical or mental condition that limits a major life activity, including the ability to work in a single job for a single employer, the employee is considered to have a protected disability.  Thus, an employer in this hypothetical has seemingly terminated the employee because of the employee’s disability or because the employer perceived the employee as having a disability. 

The employee sues your agency for disability discrimination.  At trial, the employee pays for a doctor to opine that she is fit and can perform the essential functions of the job.  The jury is given the standard CACI instruction on disability discrimination: to establish a cause of action, plaintiff must prove: (1)  that the agency was an employer under FEHA; (2) that plaintiff was an employee of the agency; (3) that the employer knew or perceived  that the plaintiff had a “disability”; (4) that the plaintiff was able to perform the essential job duties with or without reasonable accommodation; (5) the employer discharged plaintiff; (6) that the plaintiff’s real or perceived “disability” was a motivating reason for the discharge; (7) that plaintiff was harmed; and (8) that the employer’s discharge was a substantial factor in causing plaintiff’s harm. 

Assuming the jury were to be more persuaded by the employee’s doctor-for-hire than your agency’s doctor, the jury will return a verdict against the agency regardless of the fact that your agency had an honest, good faith belief that the employee was unable to perform the essential functions of the job, an otherwise legitimate, nondiscriminatory reason for the discharge. 

However, as the court in Joaquin and numerous other courts in this state have noted, intent is an essential element of a cause of action for discrimination.  Moreover, if an employer’s adverse employment decision is based on reasons which, if true, preclude a finding of discrimination, the employer cannot be liable for discrimination, even if the employer’s honestly held belief is later shown to be wrong or unwise. While the objective soundness of an employer’s proffered reason supports their credibility, the ultimate issue is simply whether the employer acted with a motive to discriminate illegally.  That is why the CACI instruction on disability discrimination also presents a flaw in failing to include discriminatory intent as an element to the cause of action. 

The Joaquin decision came at no better time. The California Judicial Council recently issued an “Invitation to Comment” on new and revised CACI, including instructions on retaliation and disability discrimination.  Those wanting to comment on the new and revised jury instructions should submit their comments by March 2, 2012.