2513 . Business Judgment
In California, employment is presumed to be “at will.” That means that
an employer may [discharge/[ other adverse action ]] an employee for no
reason, or for a good, bad, mistaken, unwise, or even unfair r eason, as
long as its action is not for a [discriminatory/r etaliatory] reason.
New December 2013
Directions for Use
Give this instruction to advise the jury that the employer ’ s adverse action is not
illegal just because it is ill-advised. It has been held to be error not to give this
instruction. (See V er onese v . Lucasfilm Ltd. (2012) 212 Cal.App.4th 1, 20-24 [151
Cal.Rptr .3d 41].)
Sources and Authority
• At-W ill Employment. Labor Code section 2922.
• “[A] plaintif f in a discrimination case must show discrimination, not just that the
employer ’ s decision was wrong, mistaken, or unwise. . . . ‘ “The employer may
fire an employee for a good reason, a bad reason, a reason based on erroneous
facts, or for no reason at all, as long as its action is not for a discriminatory
reason. . . . ‘While an employer ’ s judgment or course of action may seem poor
or erroneous to outsiders, the relevant question is . . . whether the given reason
was a pretext for illegal discrimination. The employer’ s stated legitimate reason
. . . does not have to be a reason that the judge or jurors would act on or
approve.’ ” ’ ” ( V eronese, supra, 212 Cal.App.4th at p. 21, internal citation
• “[I]f nondiscriminatory , [defendant]’ s true reasons need not necessarily have
been wise or correct. While the objective soundness of an employer’ s prof fered
reasons supports their credibility . . . , the ultimate issue is simply whether the
employer acted with a motive to discriminate illegally . Thus, ‘legitimate’ reasons
in this context are reasons that are facially unr elated to pr ohibited bias , and
which, if true, would thus preclude a finding of discrimination .” ( Guz v . Bechtel
National, Inc. (2000) 24 Cal.4th 317, 358 [100 Cal.Rptr .2d 352, 8 P .3d 1089],
original italics, internal citations omitted.)
• “[U]nder the law [defendant] was entitled to exercise her business judgment,
without second guessing. But [the court] refused to tell the jury that. That was
error .” ( V er onese, supra, 212 Cal.App.4th at p. 24.)
• “An employment decision based on political concerns, even if otherwise unfair ,
is not actionable under section 12940 so long as the employee’ s race or other
protected status is not a substantial factor in the decision.” ( Diego v . City of Los
Angeles (2017) 15 Cal.App.5th 338, 355 [223 Cal.Rptr .3d 173].)
• “What constitutes satisfactory performance is of course a question ordinarily
vested in the employer ’ s sole discretion. An employer is free to set standards
that might appear unreasonable to outside observers, and to discipline employees
who fail to meet those standards, so long as the standards are applied
evenhandedly . But that does not mean that an employer conclusively establishes
the governing standard of competence in an employment discrimination action
merely by asserting that the plaintif f’ s performance was less than satisfactory .
Evidence of the employer ’ s policies and practices, including its treatment of
other employees, may support a contention, and an eventual finding, that the
plaintif f’ s job performance did in fact satisfy the employer ’ s own norms.” ( Cheal
v . El Camino Hospital (2014) 223 Cal.App.4th 736, 742-743 [167 Cal.Rptr .3d
• “The central issue is and should remain whether the evidence as a whole
supports a reasoned inference that the challenged action was the product of
discriminatory or retaliatory animus. The employer’ s mere articulation of a
legitimate reason for the action cannot answer this question; it can only dispel
the presumption of improper motive that would otherwise entitle the employee to
a judgment in his favor .” ( Cheal, supra , 223 Cal.App.4th at p. 755.)
Secondary Sources
3 W itkin, Summary of California Law (1 1th ed. 2017) Agency and Employment,
§ 244 et seq.
8 W itkin, Summary of California Law (11th ed. 2017) Constitutional Law ,
Chin et al., California Practice Guide: Employment Litigation, Ch. 4-A, Employment
Pr esumed At W ill , ¶ 4:25 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, T itle VII
And The California Fair Employment And Housing Act , ¶¶ 7:194, 7:200-7:201,
7:356, 7:391-7:392, 7:530, 7:531, 7:535 (The Rutter Group)
4 W ilcox, California Employment Law , Ch. 60, Liability for W r ongful T ermination
and Discipline, § 60.01 et seq. (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 249, Employment Law:
T ermination and Discipline , § 249.11 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: W rongful
T ermination and Discipline , § 100.23 (Matthew Bender)
2514-2519. Reserved for Future Use
CACI No. 2513 F AIR EMPLOYMENT AND HOUSING ACT
Page last reviewed May 2024
In this two-part series of columns, Touro University, Jacob D. Fuchsberg Law Center professor Rodger D. Citron examines Chief Justice John Roberts’s leadership of the Supreme Court over multiple terms, focusing on his apparent dual objectives of balancing political attunement and advancing conservative ideology.
Lawyers - Get Listed Now! Get a free directory profile listing
