Liability for prohibited “employment practices” under the California Fair Employment and Housing Act (FEHA) generally requires the existence of an employment relationship. In a discrimination case, for example, there must exist an employment relationship between the one who discriminates and the person who finds herself the victim of that discrimination. An employee can sue an employer who retaliates against her for resisting sexual harassment in the work place. By contrast, a partner would not have a valid claim for discrimination under the FEHA against a fellow partner for discrimination she herself suffered.
In Mary Fitzsimons v. California Emergency Physicians Medical Group, the First Appellate District dealt with a question that appears to fall within the cracks: Does a partner have standing under the FEHA to sue her fellow partners for retaliating against her when she opposes the sexual harassment of an employee of the partnership?
Yes, the Court of Appeal ruled, the partnership can be liable under the FEHA.
As the Court of Appeal reasoned:
"Both the language of the retaliation provision and the purpose of the statute support liability when a partner asserts a claim for retaliation against her partnership based on reports of sexual harassment of an employee. Recognizing such a claim furthers the protection of those employees subject to sexual harassment . . . .”
In so ruling, the Court noted that federal authority to the contrary, interpreting Title VII of the Civil Rights Act of 1964, was not controlling. Although California courts sometimes look to Title VII in interpreting the FEHA, the Court explained, there are distinct differences between the two statutes which “diminish the weight of federal precedents.” Title VII, the Court noted, has much narrower language in its anti-retaliation provisions. Thus, the Court implied, Fitzsimons would not have had a viable action under Title VII.
If you wish to discuss this case, or any other issues relating to employer liability under the FEHA or Title VII, please Email Michael Newman.