28 F.4th 968
9th Cir.2022Background
- Plaintiffs Kristina Raines and Darrick Figg are job applicants whose offers were conditioned on pre-employment medical screenings administered by defendants, large providers of occupational-health services acting for employers.
- Defendants used written questionnaires and follow-up questioning that asked many non-job-related, intrusive health questions (e.g., sexual/reproductive history, HIV, medications, prior injuries).
- Raines refused to answer a question about her last menstrual period; the exam was terminated and her job offer revoked. Figg answered but alleges the questions were inappropriate; he was hired.
- Plaintiffs filed a putative class action alleging violations of California's Fair Employment and Housing Act (FEHA) and other claims; the district court dismissed the FEHA claim, concluding FEHA does not impose direct liability on agents.
- The Ninth Circuit concluded the question whether FEHA’s definition of “employer” (including “any person acting as an agent of an employer”) permits direct liability for business entities acting as agents is unsettled under California law and certified that question to the California Supreme Court; further proceedings were stayed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FEHA permits direct liability for a business entity that acts only as an employer's agent | FEHA's text and remedial purposes support direct liability for any "person acting as an agent of an employer," and Reno/Jones are narrow exceptions for individuals | Reno/Jones show agent language should not impose direct liability on agents; the clause was meant to incorporate respondeat superior and provide recourse, not create new direct liability for agents | Certified to the California Supreme Court for authoritative answer |
| Whether Reno v. Baird and Jones v. Lodge at Torrey Pines limit FEHA agent liability to individuals (not entities) | Reno and Jones should be read narrowly and not extended to business-entity agents | Reno and Jones reflect principles applicable to all agents, and policy concerns (conflicts, chilling, small-employer incongruity) counsel against direct agent liability for entities too | Certified to the California Supreme Court for authoritative answer |
Key Cases Cited
- Reno v. Baird, [citation="18 Cal.4th 640"] (1998) (California Supreme Court held individual supervisors are not directly liable under FEHA as agents; emphasized narrowness of that holding)
- Janken v. GM Hughes Electronics, [citation="46 Cal. App. 4th 55"] (1996) (Court of Appeal decision relied on in Reno to limit individual-agent liability under FEHA)
- Jones v. Lodge at Torrey Pines Partnership, [citation="42 Cal.4th 1158"] (2008) (California Supreme Court held non-employer individuals not liable for FEHA retaliation and applied Reno's concerns)