CACI 2500: FEHA Disparate Treatment Elements, Defenses, and Remedies

CACI 2500 is the California civil jury instruction that lists what an employee must prove to win a disparate treatment discrimination claim under the Fair Employment and Housing Act (FEHA). It sets out six factual elements, and if the jury finds even one of them unproven, the employer wins.¹

The Six Elements the Employee Must Prove

Under CACI 2500, the jury is asked to decide each of the following:¹

The defendant was an employer or other entity covered by FEHA, which generally means a business with five or more employees.
The plaintiff worked for the defendant or applied for a job there.
The employer fired, refused to hire, or took some other adverse employment action against the plaintiff. A forced resignation (constructive discharge) also counts.
A protected characteristic was a substantial motivating reason for the employer’s decision.
The plaintiff was harmed.
The employer’s conduct was a substantial factor in causing that harm.

Harm and causation are listed separately for a reason. Proving the employer acted with bias is not enough on its own. The employee also has to show the bias produced real consequences. A discriminatory remark that never changed anyone’s pay, position, or working conditions does not clear this bar.

Which Characteristics Are Protected

FEHA covers a broader list than federal law. Under Government Code section 12940(a), an employer cannot base hiring, firing, promotion, pay, or any other employment decision on:²

Race, color, national origin, or ancestry
Religious creed
Physical or mental disability
Medical condition or genetic information
Sex, gender, gender identity, or gender expression
Sexual orientation
Marital status
Age (40 and over)
Military or veteran status
Reproductive health decisionmaking

The reproductive health category was added effective January 1, 2023, and reaches decisions about contraception, fertility treatment, and similar medical choices.³ A plaintiff can rely on a combination of characteristics. An employer who treats older women differently than older men can be liable based on the intersection of age and sex.

What Counts as an Adverse Employment Action

Being fired is the clearest example. The instruction reaches further. Any employer action that changes the terms or conditions of employment in a way that leaves the worker worse off can qualify: a demotion, a pay cut, denial of a qualified-for promotion, loss of benefits, a punitive transfer, or a formal write-up that blocks advancement.⁴

The U.S. Supreme Court held in Muldrow v. City of St. Louis (2024) that the harm need not be dramatic. A transfer that left the employee somewhat worse off in prestige, schedule, or opportunity is enough, and the employee does not have to show the change was “significant” in any heightened sense.⁵

Constructive Discharge

If the employer made working conditions so intolerable that no reasonable person would have stayed, the law treats the resignation as a termination.¹ The bar is high. A bad week or a personality clash with a manager will not get there. The conditions have to be severe enough that quitting was effectively the only option.

The Substantial Motivating Reason Standard

Element four is where most CACI 2500 cases are decided. A companion instruction, CACI 2507, tells the jury that a “substantial motivating reason” is one that actually contributed to the adverse action and was more than remote or trivial. It does not have to be the only reason.⁶

The standard comes from the California Supreme Court’s decision in Harris v. City of Santa Monica (2013), which set a middle ground between requiring discrimination to be the sole cause and allowing liability for any trace of bias.⁷

In practice, jurors look at timing (was the adverse action shortly after the employer learned about the protected characteristic?), inconsistency (were similarly situated employees without the characteristic treated better?), and whether the employer’s stated reason holds up under scrutiny. A supervisor who fires the only Black employee on the team for “poor performance” while tolerating identical performance from white coworkers gives the jury a strong inference that race was in play.

The Same-Decision Defense

Harris also gave employers an escape valve on remedies. Even after the jury finds discrimination was a substantial motivating reason, the employer can argue it would have made the same decision anyway. If the employer proves that by a preponderance of the evidence, the court cannot award damages, back pay, or reinstatement.⁷

The employer does not walk away clean. The court can still order injunctive relief to stop ongoing discriminatory practices, issue a declaratory judgment that the employer violated the law, and award the plaintiff reasonable attorney’s fees. The finding of liability stays on the record.

How a Case Reaches the CACI 2500 Jury

Before the instruction is read in court, the case moves through a three-stage pretrial framework adapted from the U.S. Supreme Court’s McDonnell Douglas decision. California courts apply it to FEHA disparate treatment claims.

First, the employee has to establish a prima facie case: membership in a protected group, qualification for the job, an adverse action, and circumstances that suggest discrimination. The bar here is not high. The facts just need to be consistent with the possibility of bias.

Second, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the decision. “We laid off the entire department” or “she consistently missed deadlines” are the kinds of explanations offered at this stage. The employer does not have to prove the reason is true, only state one.

Third, the burden shifts back to the employee to show that the stated reason is a pretext for the real discriminatory motive. Contradictions in the employer’s testimony, shifting explanations, suspicious timing, and evidence that a rule was applied selectively all support pretext. If the employee gets past this stage, the case goes to the jury under CACI 2500.

Burden of Proof and the Evidence That Wins

At trial, the overall burden is preponderance of the evidence — the “more likely than not” standard used in civil cases. If the jury finds it at least slightly more probable than not that each element of CACI 2500 is true, the plaintiff wins.⁸ If the evidence is perfectly balanced, the plaintiff loses. The scales have to tip.

Most discrimination is proven with circumstantial evidence, and California treats it as just as powerful as direct evidence. Direct evidence is a statement or document that reveals bias on its face, like an email saying “we need someone younger for this role.” Circumstantial evidence asks the jury to draw an inference: patterns of promoting less qualified candidates from outside the protected group, sudden negative reviews after a pregnancy disclosure, or comments suggesting bias without naming the characteristic outright. Credibility often decides close cases. Personnel files, performance reviews, contemporaneous emails, and timing evidence move the needle more than uncorroborated testimony.

You Have to File With the Civil Rights Department First

You cannot go straight to court with a FEHA claim. California requires you to file a complaint with the Civil Rights Department (CRD), formerly the Department of Fair Employment and Housing. Skip this step and the lawsuit is dismissed no matter how strong the evidence.

The deadline to file with the CRD is three years from the date of the discriminatory act.⁹ This period was one year until 2019, so older sources may show the shorter window. If you did not learn about the discriminatory act until after it happened, the deadline may extend up to 90 days beyond the standard period.

After filing, the CRD has 150 days to decide whether to pursue the case itself. If it does not file its own civil action, you can request a right-to-sue notice, which lets you file in court.¹⁰ Many plaintiffs request the notice immediately to keep things moving. Once you have it, you have one year to file your lawsuit. Miss that year and the right to sue is gone. Filing with the CRD is free, can be done online, and does not require a lawyer at that stage.

What a Plaintiff Can Recover

FEHA places no statutory cap on compensatory or punitive damages, one reason California employment lawyers routinely bring FEHA claims alongside any federal ones. A successful plaintiff under CACI 2500 can recover:³

Back pay from the date of the adverse action through trial
Front pay for projected future lost earnings when reinstatement is not practical
Emotional distress damages for anxiety, humiliation, and other psychological harm
Punitive damages, which require proof that the employer acted with malice or conscious disregard for the employee’s rights
Reinstatement or promotion by court order
Attorney’s fees and costs, paid by the employer

If the same-decision defense succeeds, the court strips out damages, back pay, and reinstatement but can still order injunctive relief and award attorney’s fees, and the finding that the employer broke the law remains on the record.⁷

1
Justia. California Civil Jury Instructions (CACI) – Disparate Treatment – Essential Factual Elements
2
California Legislative Information. California Government Code 12940 – Unlawful Practices, Generally
3
California Civil Rights Department. Employment
4
United States Courts for the Ninth Circuit. Civil Rights – Title VII – Adverse Employment Action in Disparate Treatment Cases
5
Supreme Court of the United States. Muldrow v. City of St. Louis
6
Justia. CACI No. 2507 – Substantial Motivating Reason Explained
7
Justia. Harris v. City of Santa Monica
8
Judicial Branch of California. Civil Plain English Comparison
9
California Legislative Information. California Government Code 12960
10
California Legislative Information. California Government Code 12965