(November
1998)
Individual Liability Under FEHA Reduced
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Immediate
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All employers
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A California Court of Appeals has
ruled that when a non-supervisory employee sexually harasses
a coworker, s/he cannot face individual liability under the Fair
Employment & Housing Act (“FEHA”).
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| The Court also held that a supervisor
who did not directly facilitate or participate in the harassment
cannot face individual liability under the FEHA for failing to
prevent or stop the harassment. |
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| This decision follows a California
Supreme Court ruling that supervisors cannot be held individually
liable for discrimination under the FEHA. As a result, the only
parties facing liability for FEHA discrimination or harassment
are supervisors who actually engage in harassment and the employer. |
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The FEHA declares it unlawful for
any employer or “any other person” to harass an “employee
or applicant”. The courts have all made it very clear that
when a supervisor harasses an employee, not only will the employer
face liability, but the harassing supervisor will also face individual
liability. In a surprising ruling, in Carisales v. Department
of Corrections, the State Court of Appeals noted that the “any
other person” language in the FEHA does not stand alone;
there must be an employment relationship between the harasser
and the victim. The Court believed that while such a relationship
exists between a supervisor and a subordinate, it does not exist
between co-workers. Accordingly, the Court reasoned, the statute
does not address liability of a non-supervisory harasser. The
Court was concerned that to rule otherwise would permit FEHA
suits against all sorts of individuals with no relationship to
the employer. For example, the Court considered it unlikely that
the legislature intended that a customer who harasses a waitress
could be sued under a fair employment statute for harassment.
The Court also held that the duty to prevent and to end harassment
is imposed on the employer, and not on individual supervisors.
Accordingly, where a supervisor does a poor or even non-existent
job of dealing with workplace harassment, only the employer faces
liability.
The Court was careful to point out that escaping liability under
the FEHA does not mean an escape from all liability or consequences.
There are many claims claims that can be asserted against an individual
arising out of a harassment situation. Infliction of emotional
distress, invasion of privacy, assault and battery are just a few
possibilities an individual harasser may face. Also, the individual
harasser will probably face stiff punishment, possibly termination,
from the employer. However, given that the FEHA provides opportunities
for larger damages awards, including attorneys’ fees, this
ruling is bad news for those plaintiffs’ lawyers who like
to bring FEHA claims. |
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While recent court decisions are
reducing the exposure to FEHA lawsuits facing individuals, the
result is greater emphasis on the employers as litigation targets.
Employers will continue to be held ultimately responsible for
workplace harassment. The best possible course of action for
any employer is to work to prevent harassment in the workplace,
and respond promptly and appropriately to any potential harassment
situation. This requires: (1) a legally appropriate policy against
harassment; (2) a meaningful complaint process that is communicated
to all employees; (3) a comprehensive training program for supervisors
to prevent and end harassment; (4) supervisors who know what
they should and should not say or do if faced with a harassment
situation; (5) at least one person fully trained to handle any
potential harassment situations that might arise; (6) expert
consultation and / or legal counsel regarding the appropriate
response to these volatile problems when they arise.
This bulletin is a general overview of the subject matter,
and is not meant to provide professional opinions regarding
any specific case, matter, or set of facts, or to substitute
for the professional advice of Waag and Co. Instead, please
contact Susan S. Waag, Esq. for additional information. |
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