*1 July S065473. [No. 1998.] RENO,
KIMBERLY Plaintiff and Appellant, BAIRD, Defendant MARIJO and Respondent.
Counsel Lawless, Lawless, Lawless, Horowitz & Barbara A. Phil Hororwitz and Steven J. Dow for Plaintiff and Appellant. Posner, Pearson & G. and Susan M.
Joseph Hough, Joyce Hough Pearson Amici Curiae on behalf of Plaintiff and Appellant. Miller
Hoyt, & Eric P. Angstadt, Angstadt Scott W. Obome for Defend- ant and Respondent. General, Milas,
Daniel E. Lungren, Attorney Martin H. Assistant Attorney General, Salerno, Christine B. Mersten and Heidi T. Deputy Attorneys General, Orrick, Sutcliffe, Klein, Brown, & Herrington Thomas P. Ella L. Kosanovich, Paul, L. Walker, Wendy & Hastings, Janofsky Paul Grossman *4 and W. Abele George as Amici Curiae on behalf of Defendant and Respondent.
Opinion
CHIN, The CaliforniaFair (FEHA) and Act Employment Housing J. (Gov. Code, et seq.)1 generally § from prohibits employers practicing some kinds of discrimination. We must decide whether persons claiming discrimination sue their supervisors and hold them liable individually if damages FEHA, their they prove We conclude that the allegations. like statutes, similar federal allows to sue and hold persons liable their employ ers, but not individuals. Our conclusion also to common law actions applies for wrongful discharge. we Accordingly, reverse Court of Appeal judg ment, liable, which held that individual be sued and held employees may and approve contrary of Janken holding (1996) v. GM Electronics Hughes Cal.App.4th (Janken). 741] History I. Procedural
. Plaintiff Kimberly Reno sued several defendants for various causes action. Two of them are at issue here: discrimination based employment FEHA, on medical condition in violation of the and in viola- discharge others, tion of entities; Some of the public policy. defendants were business Baird, here, including Marijo were individuals. As relevant the complaint that the alleged business defendants hired entity as a plaintiff registered nurse; FEHA; that these businesses were as employers defined in the that the statutory
1All further references are the Government Code unless otherwise indicated. Baird, defendants, “acted as ... business agents including [the therefore also employers” the FEHA were violating defendants] act; on “discriminated against plaintiff defined in the and that the defendants condition, cancer, because and discharged plaintiff the basis of her medical condition, cancer, of’ the FEHA public of her medical in violation policy. could not be held she summary judgment, arguing
Baird moved The court liable for discrimination. superior individually employment It held The Court of reversed. the motion. Reno granted appealed. that, FEHA, committed the alleged under the who agents” “supervisory discrimination, be sued and held as well as the employer, may unlawful con- contrary that discrimination. It disagreed liable for expressly Janken, 55. clusion of five In addition to the parties, We Baird’s for review. granted petition California Employment have filed briefs in this court. The amici curiae similar, action in a but separate, support Association Lawyers plaintiff Law the California Group, Employment Reno. plaintiff Employers Council, defendant Baird. and the General Attorney support
II. Discussion
A. Introduction *5 at here: one under the FEHA causes of action are issue
Two
(See
v.
Tameny
in violation of
discharge
public policy.
one for wrongful
839, 610 P.2d
(1980)
Recently, we although noted number of cases “have involved defendants, no made that argument could not be they per- liable,” sonally “no California prior published decision has consid- directly ered whether FEHA imposes on an individual personal liability employee who manager causes or assists a covered to violate the statute’s ‘employer’ prohibitions against discriminatory hiring, firing, personnel practices.” (Caldwell v. Montoya, at 3.) Cal.4th fn. We p. expressly declined to address “that broad and difficult (Id. . . . .” question p. Later, decisions, fn. in scholarly two Courts of considered the Appeal question first, Janken, reached opposite conclusions. The authored, which Justice Zebrowski concluded that only and not employer, be sued and supervisors, may held liable.2 The second, the case, Court of decision in this which Justice Lambden authored, concluded that individual supervisors also be sued. We agree with Janken.
B. The Janken Decision
1. Distinction Between Discrimination and Harassment
The Janken court noted the FEHA’s treatment of differing harass ment and discrimination. It that the Legislature’s differential “conclude[d] treatment of harassment and discrimination is based on the fundamental distinction between harassment as a of conduct not type to a necessary supervisor’s job performance, and business or deci personnel management sions—which later be might considered nec discriminatory—as inherently *6 to essary a performance of supervisor’s job.” (Janken, supra, 46 Cal.App.4th 62-63.) court noted that “harassment consists of a of conduct type not for necessary Instead, of a performance supervisory harassment job. 2Two recent Court of Appeal agreed decisions have with Janken but contain independent no (Acuna analysis. Regents University (1997) v. Cal.App.4th 56 651 [65 of of California 388]; Cal.Rptr.2d Melugin v. Zurich Canada Cal.App.4th 50 &666 fn. 4 [57 781].) Cal.Rptr.2d approvingly Another cited Janken and relied on portions substantial of its analysis discussing scope liability (Fiol of individual for harassment under the FEHA. 1318, 1326, 1328-1329, v. Doellstedt 50 Cal.Rptr.2d 1330-1331 [58 308].) (This discrimination, case a involves claim for not harassment. We express opinion no regarding liability harassment.) individuals’ for
646
conduct
necessary job
outside the
of
scope
performance,
consists of conduct
or
because of meanness
in for
gratification,
engaged
personal
presumably
of a
Harassment is not conduct
type
other
motives.
or for
bigotry,
personal
of the
business or performance
of
necessary management
employer’s
Memorial
(Cf. Lisa M. v.
Newhall
Henry Mayo
job.
supervisory employee’s
P.2d
(1995) 12 Cal.4th
Cal.Rptr.2d
358]
Hospital
[48
interest]; Farm-
to
not motivated
desire
serve
by
employer’s
assault
[sexual
(1995)
“Discrimination not a harassment is type duties. While management nécessary personnel a decisions is making type management, conduct to necessary personnel it is to avoid While management. possible conduct essential to personnel basis, it is not on a discriminatory decisions making prohibited personnel decisions or to claim prevent either to avoid making personnel possible decisions were discriminatory. that those as a test to authority of delegable
“Courts have employed concept from conduct actionable as actionable as discrimination conduct distinguish the exercise of personnel this to find that harassment. We adopt approach a to delegated by supervisory management authority properly discrimination, (See harassment. Birk- but not in result might employee and fn. 1 1994) 30 F.3d (4th Cir. Lighting Corp. beck v. Marvel character’ from of a delegable decisions [distinguishing plainly ‘personnel Co., 1995) (E.D.Va. Inc. harassment]; Kay Management Stephens 169, 171, of individual personal F.Supp. [no ‘ a del- decisions of plainly decisions’ or “personnel ‘employment-related conduct of a type decision is character’”].) Making personnel egable that constitutes harassment. from the of conduct different fundamentally type is avoidable and of conduct that claims are based on type Harassment needs to use slurs No employee to unnecessary job supervisory performance. movement, interfere with freedom to drawings, physically derogatory advances, etc., out carry in order in unwanted sexual engage Every employee management. supervisory legitimate objectives personnel from refraining claims of harassment by or herself from can insulate himself cannot, however, refrain employee such conduct. An individual supervisory rise to a could later give of conduct which from in the engaging type inherent and un- decisions is an Mating discrimination claim. personnel deci- Without mating personnel function. avoidable supervisory part or her duties. sions, job cannot his simply perform a supervisory employee *7 therefore, conclude, commonly intended that that the Legislature “We or job hiring firing, actions such management necessary personnel office or work station project assignments, assignments, or demo- promotion tion, evaluations, performance provision support, assignment functions, nonassignment supervisory deciding who will who will not off, like, attend who will be laid and the do meetings, deciding not come within the of harassment. meaning These are actions of a necessary type out the duties of carry business and These personnel management. actions motives, found if based on retrospectively discriminatory improper but in that event the remedies the FEHA are those for by discrimi- provided nation, Harassment, contrast, not harassment. consists of by actions outside duties which are not of a scope job to business and type necessary personnel management. This distinction underlies the significant differential treatment of discrimination {Janken, harassment and in the FEHA.” 63-65, at fns. Cal.App.4th omitted.) pp.
2. The Statutory “Agent” Language
The Janken court confronted the that an indi plaintiffs’ argument vidual supervisor acts “as an of an agent within the employer” meaning in section “employer” (d), subdivision and is therefore personally liable as an It found two employer. constructions of the possible “agent” “One language. construction is that argued here: that this by by plaintiffs n language Legislature intended to define every supervisory employee California as an and hence ‘employer,’ each at risk of place personal liability whenever he or she makes a decision which personnel could later be considered The other discriminatory. construction is the one widely accepted around the the inclusion country: of the ‘agent’ language Legis lature intended only ensure that employers will be held liable if their supervisory take actions later found and that discriminatory, cannot avoid employers that a liability by arguing failed to supervisor follow instructions or deviated from the {Janken, employer’s policy.” 65-66, italics.) The original court the latter adopted construction for several reasons.
a. Cases Federal Interpreting Statutory Counterparts The Janken court relied in on decisions part similar interpreting language in federal statutes. “Because the antidiscrimination objectives relevant of title wording VII of the Civil Act Rights (Title VII) [(42 of 1964 U.S.C. 2000e et the Age Discrimination in seq.)], § Act Employment (ADEA) [(29 U.S.C. et and the seq.)] Americans with Disabilities § Act (ADA) [(42 FEHA, U.S.C. 12111 et are similar to those of the seq.)] § California courts often look to federal decisions these statutes interpreting (See, assistance in the FEHA. Los interpreting e.g., Angeles County Dept.
648 273, 280 (1992) Com. 8 Cal.App.4th Recreation v. Civil Service Parks & (1989) 214 150]; Peninsula Hospital Fisher v. San Pedro [10 Witkin, Law 842]; of Cal. Summary 8 Cal.Rptr. Cal.App.3d Law, 759, 255-259.) (9th 1988) ed. Constitutional § more . . has fifteen or as ‘a . who “Title VII defines employer person 2000e(b).)] [(42 U.S.C. of such any agent person.’ § . . . employees or more . . . who has twenty as ‘a person The ADEA defines employer 630(b).)] [(29 U.S.C. of such a including ‘any agent person.’ § employees’ or more ‘a . . . who has 15 The ADA defines person 12111(5)(A).)] These [(42 U.S.C. of such agent person.’ § . . . and any all identical in contain definitions of employer three federal statutes thus in the FEHA: contained to the definition of employer relevant respects are in these statutes worded the definitions of employer all specifically, at (Janken, p. Cal.App.4th of the ‘agent’ employer.” cover omitted.) fns. v. Kay consensus” (Stephens court cited the “clear and growing Co., 173) courts 1995) (E.D.Va. Inc. 907 F.Supp.
Management cannot be held personally the federal statutes interpreting that, federal eight discrimination. It noted since liable for employment not create does (1) “agent” language either held that the circuits have discrimination, that, individuals although or found for liability sued not be they may their official or capacity, can be sued in representative liability, interpreted and have no personal in their individual capacity (Jan- liability. in a statute as not creating similar state language ken, these circuit The court discussed p. individually. decisions was a 1995) F.3d 1313-1314 (2d Cir. Corp.
“Tomka Seiler narrow, Tomka, literal Circuit ‘a rejected In the Second Title VII case. is a agent ‘that an employer’s of the clause’ which agent implied reading Instead, on ‘a broader consid- liability.’ statutory purposes VII, the ‘agent’ language Tomka found that of the of Title eration’ purposes (66 liability. superior intended as a simple expression respondeat was 1295, 1314.) F.3d F.3d 507 an [(4th 1994)] Cir. was Marvel Lighting Corp.
“Birkbeck v. Birkbeck, courts that noted that few the Fourth Circuit ADEA case. In ‘[t]he on the use of ADEA tend to seize under the liability have found individual ’ found that ratio- Birkbeck in the definition of employer. the word “agent” was ‘an that the reference ‘agent’ instead finding nale ‘unpersuasive,’ discriminatory per- of respondeat superior—that unremarkable expression create agent may taken employer’s sonnel actions 507, 510.) (30 F.3d employer.’ *9 649, (5th
“Grant v. Lone 1994) Star Co. Cir. 21 F.3d 651-653 a Title was Grant, VII case. In the Fifth Circuit stated that neither nor public private sector are to individual on the basis of the subject liability ‘agent’ instead that the language, agreeing of the was to purpose ‘agent’ provision (See into Title VII. also v. incorporate respondeat liability Harvey superior 226, (5th 1990) Blake Cir. F.2d 913 227-228 officials be liable may [public in their official but not in their individual capacities, capacities].)
“U.S. E.E.O.C. v. AIC Security (7th 1995) Ltd. Cir. 55 Investigations, F.3d E.E.O.C., 1276 an was ADA case. In U.S. the Seventh Circuit joined ‘analogous decisions of our sister Circuits in holding individuals who do not meet the ADA’s definition independently of cannot be held “employer” liable (55 under the ADA.’ 1276,1279.) F.3d The Seventh Circuit stated that the EEOC was the ‘fighting against of in weight authority’ urging on the basis of the liability in the ‘agent’ wording definition. employer ‘ ’ While the EEOC’s finding “plain language” have ‘surface argument the Seventh Circuit appeal,’ found closer examination that is ‘upon appeal really (55 1281.) illusion.’ F.3d The court ruled that the reason for the inclusion of the ‘agent’ definition of language ‘was to employer ensure that the courts would impose respondeat superior liability upon for the employers ([Ibid.], acts of their agents. italics.) original [Citations.]’ “Miller v. (9th Maxwell’s Intern. Inc. 1993) Cir. F.2d 991 583 was a Title Miller, VII and that, ADEA case. In the Ninth Circuit noted because of the use of the word ‘agent’ in the definition of ‘some employer, courts have reasoned that ... are supervisory personnel themselves employers of (Miller, purposes liability.’ F.2d 991 the Ninth Although Circuit found that this statutory construction was ‘not argument without merit,’ the court found the ‘better rule’ to be that the of the purpose agent provision was to incorporate into the respondeat superior liability statute. effect, ([Ibid.].) the same see also (9th 1995) [To Greenlaw v. Garrett Cir. F.3d 1001.]
“Sauers v.
(10th
Salt
County
1993)
Cir.
Lake
Institute Technology, of as in a Missouri statute construed similar language Circuit Court Appeals law, federal “Reviewing not individual on liability supervisors. imposing cannot be held that Circuit found a ‘clear consensus’ supervisors Eighth could be and that instead in their individual liable capacity, that has that circuit ‘[e]very their ‘official’ finding named only capacities, one even has concluded that employee, considered the issue ultimately liability is not an whom upon authority, employer possessing supervisory 377, 381.)” {Janken, 46 (55 supra, F.3d under Title VII.’ can be imposed 69-70, omitted.) fn. and Holding Small Exempting Employers b. Between Incongruity Liable Individual Nonemployers from small employers also noted that the FEHA exempts
The Janken court 12926, (d) defines ‘em discrimination. “Section subdivision for liability five or more persons.’ ‘any regularly employing as including person ployer’ not an than other is less five persons A who regularly employs person discrimination, and hence on of FEHA for purposes prohibitions ‘employer’ Cal.4th Marralle 8 v. {Jennings be sued for discrimination. cannot harassment, 275, 1074].) For purposes 876 121 12940, however, in section subdivision is defined specially ‘employer’ or more one persons. (h)(3)(A) any regularly employing to include person clear that this (h)(4) special make subdivision Section other one only person as someone employing definition of ‘employer’ claims, claims continue and that discrimination to harassment applies only 12926, subdivision in section or more’ definition to be covered the ‘five in the in California a clear distinction (d). thus made The Legislature of discrimination the treatment of harassment claims versus treatment harassment, be sued but cannot they can sued claims: small employers discrimination.
651 ADA, “In Title is defined 15 employing VII and person ADEA, [(42 12111(5)(A).)] 2000e(b), more. U.S.C. In the §§ [(29 630(b).)] defined as a U.S.C. These 20 or more. person employing § discrimination definitions federal small from employers employment exempt entities because did not burden small with litigation ‘Congress want (Miller costs associated v. litigating with discrimination claims.’ Maxwell’s 587; Inc., also, Intern. 991 F.2d see Birkbeck v. Marvel supra, e.g., Lighting 30 F.3d small em- Corp., supra, [purpose exempting businesses].) is to reduce burden on small federal cases ployers Many which found no liability against personal supervisory employees based their decisions on the that would exist if small part incongruity were from while individual employers exempt nonemployer super- (Tomka visors were at risk personal Corp., supra, Seiler liability. F.3d Congress concerned protecting [inconceivable small would employers simultaneously liability on em- impose ployees]; Birkbeck v. Marvel Lighting Corp., 30 F.3d [incon- gruous to on individual when impose personal liability small nonemployer Co., are Grant Star F.3d employers exempted]; v. Lone *11 entities, that intended to Congress yet [inconceivable small allow protect entities’]; liability against individuals—‘the smallest of U.S. legal E.E.O.C. Ltd., v. AIC Security Investigations, 55 F.3d [limitation small of protecting employers balances out discrimination goal stamping with small protection of entities from of individual hardships litigation, balance]; Inc., liability that employees upsets Miller v. Intern. Maxwell’s supra, 991 F.2d intended to entities Congress small with protect [if resources, limited inconceivable that intended to allow Congress liability against individual employees].)
“The same our task of the reasoning construing to applies definition in the The FEHA. intended Legislature clearly protect to employ ers of less than from the of five burdens discrimination claims. litigating Marralle, v. (Jennings 8 Cal.4th We it is that ‘inconceiv agree able’ that the Legislature simultaneously intended to subject to the burdens of so nonemployers such claims. To construe the litigating statute would be ‘incongruous’ and would the struck the balance’ ‘upset by 71-72, italics, Legislature.” {Janken, supra, 46 original omitted.) fns. c. Avoid Policy to Interest and Chilling Conflicts of Effective of
Management3 The Janken stated court on liability “imposing supervisory would do little to enhance employees ability the of victims discrimination function, 3Although setting policy legislative, judicial, uncertainty is a not a “Where exists given particular consideration to consequences interpre- should be the that will flow from a to can reasonably expected while it damages, to monetary recover The minimal judgment. potential the exercise of supervisory severely impair the severe with potentially victim alleged juxtaposed for benefit to supervisory on individual liability personal adverse effects imposing this is not our conclusion that an additional reason for intended by Legislature. result in the conditions maintaining courts have noted importance
“Many duties in can be exercised officials performing judgment which impartial 10 Cal.4th v. (See, Montoya, supra, Caldwell e.g., sector. public ‘ judg- free and securing independent interest in “vital [[Njoting public ’ problems.’]; in with ‘dealing personnel sector employees ment” public 224, 230 (1961) 55 Cal.2d Sch. Dist. Elementary v. Brisbane Lipman in free securing is a interest vital public Cal.Rptr. 465] [‘There dealing personnel trustees in of school judgment and independent long ago Hand made a similar ...’];...) point Learned Judge problems, ‘It does 1949) stating: 177 F.2d (2d Biddle Cir. Gregoire official, his using is in fact guilty that an who indeed without go saying others, not motive or for other any personal his to vent spleen upon powers he for the injuries not should good, escape connected with public cause; and, confine such complaints if it were possible practice somay justification deny recovery. be monstrous to the it would guilty, founded the claim is well to know whether so is that it is impossible doing officials, tried, the innocent as all and that to submit until the case has been of its danger the inevitable of trial and to to the burden guilty, well as resolute, or the most outcome, all but the most the ardor of would dampen *12 ... the answer of their duties the unflinching discharge irresponsible, either alterna- between the evils inevitable be found in a balance must to the duty to do their ‘those who try . .’ rather than in subjecting tive. . Dis. Sch. (See also v. Los Angeles dread of retaliation.’ constant Tietz Unified 245], Learned Judge quoting Cal.Rptr. Cal.App.2d [48 Hand.) management efficient that effective and doubt reasonably
“No one could is also important organizations and other economic of industrial enterprises sector person- interest in effective private The societal to the welfare. public all) direct, (if at less only marginally less but be management may nel risked manager that if every personnel . . Yet it is . . manifest compelling home, college children’s savings, retirement hope his or her losing decision, education, etc., management a he or she made personnel whenever organizations other economic and of industrial enterprises management Housing Com. 43 Cal.3d (Dyna-Med, Employment Fair & Inc. v. tation.” 1323].) Cal.Rptr. be (See, would affected. Birkbeck Marvel seriously e.g., Lighting Corp., 30 F.3d a would burden on place heavy [‘personal who routinely decisions’].) those make personnel “Plaintiffs’ a in a would direct conflict theory place supervisory employee of interest- his or her time that employer every supervisory employee faced with was a decision. . . . coerce the personnel would supervisory [It] not to make the lawful decision for the employee optimum employer. Instead, the to make would be whatever supervisory employee pressed decision was least to lead to a claim of discrimination likely against discrimination only to lead that supervisory employee personally, likely claim which could most easily defended. The would thus be employee in the to the position choosing between lawful placed loyalty employer’s interests severe risk to his or her own interests versus family, lawful abandoning interests and his or her employer’s own protecting interests. The conflict personal sobering insidious of such a pressures present for the effective of our industrial implications management enterprises organizations other concern. We that if the public Legislature believe intended to all conflict place in California in such a supervisory employees interest, the would have done so much Legislature language clearer than used here.
“Moreover, imposing individual em- personal liability against supervisory adds little alleged to an victim’s ployees monetary for legitimate prospects recovery. remains the plaintiff-employee’s primary target employer. Adding adds an in supervisors personally defendants mostly terrorem to the quality litigation, threatening supervisory employ- with the ees ruin families of financial and their spectre themselves a a correspondingly plaintiff’s settlement enhancing possibility extracting basis on a other than the merits. Enhancing obtaining prospects on a settlement basis other than the hardly merits is worthy legislative .... objective
“The only marginally adding legitimate purpose supervisory as defendants is the employees that the will file for possibility employer unable to bankruptcy protection fully damages. This respond cuts both however. with about to prospect ways, Employment employer instance, is in in the first hence is of go bankrupt inherently jeopardy lesser value than with a and solvent Loss or employment healthy employer. of with an the brink of on impairment employment employer bankruptcy thus would cause less At the same damage. correspondingly compensable time, financial it is often when are for their survival struggling companies must A legal regime that the most difficult decisions be made. personnel liable after which individual were bank- supervisory personally employees which result in (a of would employer bankruptcy potentially ruptcy mean well) for the as would unemployment supervisory employees a troubled be all that less as likely, managers of business would salvage . . . declined to make decisions to save the necessary enterprise. interest harmo- by “. . . The construction we choose avoids conflicts of the FEHA of employ- with duties nizing statutory supervisory provisions ees, legitimate and does so without harm to any significant doing plaintiffs’ 72-76, (Janken, omitted.) fns. supra, interests.” 46 Cal.App.4th d. Argument to the “Chamber Horrors” Responding of court not create a “cham- argued The Janken that its would interpretation the ‘agent’ ber of horrors.” “In of the federal cases construed which many to create it was not language personal supervisors, discrimination, that such a construction would of argued open floodgates discriminate, a to ‘liberate’ give super- would ‘free would pass’ and the the recent cases visors to discriminate ‘with like. All have impunity,’ of horribles’ as arguments. such One case this rejected rejected ‘parade (U.S. Ltd., v. AIC Security Investigations, ‘Chicken E.E.O.C. Little-esque.’ 1282.) 55 F.3d Another considered this ‘chamber horrors’ supra, (Lenhardt and was ‘not Institute Technol- Basic argument persuaded.’ Inc., F.3d 381.) Another found the ‘unsound.’ ogy, supra, argument Inc., (Miller 588.) v. Maxwell’s Intern. F.2d supra, 991 remains rejected “The cases have such because the arguments employer one of liable. ‘An that has incurred civil because its damages he Title VII will quickly believes can violate with impunity employees Inc., (Miller Intern. correct that erroneous belief.’ v. Maxwell’s employee’s liable, and that 588.) F.2d ‘The is still employing entity to managers discipline and its have the incentives entity proper adequately to instruct and avoid well as to train wayward employees employees, (U.S. Security AIC Investi- actions that E.E.O.C. v. might impose liability.’ Ltd., ‘As a matter gations, F.3d practical discriminate and who their fellow unlawfully against employees, who do like “free anything their to not thereby liability, get expose their By incorporating to continue pass” wrongdoing impunity. VII, has required into Title Congress principles respondeat superior to answer acts discrimination perpetrated for prohibited employers claims employ- their An well-founded employer subjected employees. acts of discrimi- discrimination as result of an intentional employee’s ment To the favorably offending employee. nation is not look likely upon *14 to its and to avoid further contrary, the own interests employer, protect form of the almost will some liability, certainly impose upon discipline a “free to the unem- That include offending discipline may pass” employee. line, a the result that would seem if ployment likely employee particularly engages acts of intentional discrimination fellow repeated against employ- Inc., (Lenhardt ees.’ v. Basic 55 F.3d Institute Technology, supra, of 381; see also Birkbeck v. Marvel 30 F.3d Lighting Corp., supra, ensures that no can violate civil [‘Employer liability rights employee Inc., laws with v. Kay Management Co. impunity’]; Stephens not are liberated to discriminate F.Supp. [supervisory employees liable].) because the remains impunity “The of The reasoning these cases here. fact that the applies liable via the effect of the respondeat ‘agent’ superior language provides to if protection even are not personally liable. Hence dowe not find this to a consideration conclusion that compel the Legislature must have intended to on individual impose personal liability 76-77, (Janken, supervisory employees.” fn. omitted.)
3. The “Aiding Abetting” Claim The Janken court considered and rejected another textual for argument under the personal liability FEHA. “Section (g) subdivision provides aid, abet, it is an unlawful to for employment practice ‘any person incite, or coerce the compel doing acts forbidden’ any FEHA, or ‘to to do so.’ attempt Plaintiffs contend that the supervisory that, employee defendants here can held liable on theory making on challenged decisions behalf of ‘aided personnel they employer], [the and abetted’ employer]. [the we can
“Preliminarily, discern for ‘aid and abet’ purposes language independent any the liabilities involving This supervisory employees. unlawful, it language makes for third such customers example, parties induce or coerce suppliers prohibited discrimination or harassment. contend, however, Plaintiffs that this ‘aid and abet’ also language places at risk of supervisory employees personal personnel decisions in management which We must now decide they participate. whether the Legislature intended result so aby accomplish significant so method abstruse. when one
“Aiding abetting occurs another commit prohibited helps act. two concept aiding abetting involves separate [Citation.] *15 aof the other. Here we deal with individual employees one
persons, helping A can act its individual em- only through employer. corporate corporation it that a is whether can said Our ployees. question properly [Citation.] his her is and ‘aiding abetting’ corporate employee corporate of by making the acts on behalf the employee corporation when corporate or, is the intended meaning more whether this precisely, decision personnel the by Legislature. it can be said that
“. . . it is whether Linguistically, questionable properly authority management who exercises employee delegated personnel and the her in managing and his or ‘aiding abetting’ personnel, of such a alone casts doubt on usage plaintiffs’ stilted and unusual nature all the intended to place employees charged construction. Had Legislature risk the decisions in California at of making personal with duty personnel the would have done so more by language we believe liability, Legislature . . . direct and less to doubt. susceptible in . the those stated above connection
“. . For reasons stated here plus issue, did not intend we conclude that ‘agent’ Legislature supervisory employees liability upon impose personal (Janken, supra, and ‘aiding abetting’ language.” roundabout method 77-79.) at Cal.App.4th
4. Conclusion not indi- The Janken court concluded that because “only employers—and discrimination,” at risk employees—are vidual supervisory supervisory employees. trial had dismissed the individual correctly court (Janken, at p.
C. Counterarguments case criticize Janken in several Court of this
Plaintiff Appeal sum, find, in that we unpersuasive. respects discussion,” that, analysis noted “without The Court here to sue agent employees decisions allowed earlier Court Appeal plaintiffs in Caldwell v. the same statement essentially We made employers. as well 978-979, 3. observed footnote We also 10 Cal.4th Montoya, pages we expressly no decision had considered directly question, As we to consider it. (Ibid.) implied it. Janken was the first court reserved *16 Caldwell, the earlier decisions no did not authority they what provide consider.
The Court of found “the court’s to differentiate Janken attempt It harassment from discrimination claims to be untenable.” stated that any claims, forced interact supervisor to with other risks harassment forced to discrimina- just any make decisions supervisor personnel risks tion claims. It that to observed cannot allow discrimi- employers supervisors harass; nate more than the unlawfully any only delegate to they may to make decisions based factors. How- responsibility on lawful employment ever, the has between discrimination and Legislature already distinguished two, harassment. Whatever similarities there be the the em- may between former; ployer does the and do ultimately coworkers the latter. Harassment are claims claims from discrimination legitimately distinguished because are based on different they conduct. Behavior that types gives rise to a claim harassment is not related to one’s job duties performing insofar as occurs environment. except it within the Behavior that work gives claim, hand, rise to a discrimination on the other is often indistinguishable Thus, from one’s duties. the performing job tailored the Legislature properly FEHA in order to address these distinct claims.
Plaintiff claims the discrimination distinction harassment between and is Janken, effect, “unworkable.” She that “in argues that an of an [says] agent could employer be liable for personally a calendar and hanging pin-up but offending could not held employee liable if the same were to agent shout out loud T refuse to hire black and then to people’ do proceed just loud, however, that.” out Shouting as distinct from making deci- personnel sions, might be deemed actionable harassment. It is not the conduct type an employer could properly delegate; making liable for that supervisor conduct would not create a conflict of interest between the supervisor the stated, For reasons employer. the Janken court the Legislature could, did, reasonably between harassment discrimina- distinguish tion claims.
The Court of Janken as that the Appeal interpreted concluding “agent” language merely incorporated It criticized respondeat superior principles. that conclusion on basis that the FEHA would to be found incorporate said, those “Therefore,” without even it “if the principles language. agent merely articulated rule of language it was respondeat superior, Thus, unnecessary. under the Janken court’s the definition of interpretation, . . . was the rule of surplusage, violating statutory construction to ‘give to word meaning every (Arnett of a statute if Dal possible’ Cielo [v. 4,] 1]).” 14 Cal.4th We disagree that the under “agent” language surplusage any interpretation. Therefore, case for discrimination. liability
The issue in this is individual the FEHA for no under we on express scope opinion no on or harassment. We express opinion either discrimination specifically superior prin merely respondeat whether “agent” language incorporates because, We need not whatever that or has some other ciples meaning. reason Legislature it is not surplusage. means language precisely, define rather chosen to ably employer liability expressly have scope of statutory is a maxim than leave it to It judicial interpretation. word of statute if meaning every construction that “Courts should give *17 a any and should avoid construction word making surplusage.” possible, 706, 4, 22 Dal 14 Cal.4th 923 v. Cielo [56 {Arnett statutory as other 1].) But in this context means to surplusage “surplusage” in the not as to some For judicial interpretation. example, language, possible cited, at issue was a statutory language case Court of the the {Ibid.) We held that an “discovery reference to or subpoena.” interpretation inter should be avoided because that “discovery” that included “subpoena” to word “discov the word the “subpoena” surplusage would render pretation {Ibid.) ery.” the not Although Legisla
The rule does here. avoiding apply surplusage if the former “discovery ture would not need to refer to subpoena” latter, legal included the the choose to state all Legislature may applicable in a rather than leave some even predictable judicial statute principles defining decision. Express statutory language scope Rather, eliminate confusion and may is not it potential liability surplusage. avoid the need to research extraneous sources to understand legal are in statute’s full state meaning. Legislatures legal principles free. law, statutes, find without fear the courts will even if they repeat preexisting and, reason, that broader meaning. them imbued with unnecessary reliance on federal the Janken court’s Court of Appeal questioned stated, First, “The it respects. cases federal statutes two interpreting indi- consensus regarding supervisor’s federal courts have not reached has to rule on this and the United States Court liability, yet vidual Supreme not that Circuit Court of has resolved It noted the First Appeals question.” criticizing court the circuit the issue and cited two recent district decisions (D.Mass. 1995) Bank and Trust Co. court decisions. v. State Street {Ruffino 1047-1048; 1019, University Regents Ostrach v. 908 F.Supp. 196, 199-200.) It that suggested also (E.D.Cal. 1997) 957 F.Supp. California v. have been inconsistent Stults by “comparing] the Fifth Circuit’s rulings Conoco, liability] (5th 1996) 76 F.3d 654-655 Inc. Cir. [no 1994) F.3d (5th v. North America Cir. with Garcia Atochem Elf are not inconsistent. The two cases individually are [supervisors liable].” (5th 1994) v. Atochem America Cir. F.3d effec- Garda North Elf on other Sundowner Ser- tively Oncale v. disapproved grounds Offshore _ vices, 998, 1001, 201], Inc. L.Ed.2d 523 U.S. S.Ct. in their official indicated individuals be sued for harassment However, agents of Grant v. Lone Star Co. capacity employer. citing (5th 1994) Cir. 21 F.3d it also said that “Title VII does not attach (Garcia, to individuals in their individual acting capacity.” 2.) F.3d at fn. p. court has not ruled the federal
Although yet on this high question, Indeed, circuit courts the Janken the Sixth ruling overwhelmingly. support Circuit Court of of our sister circuits recently joined Appeals “majority that have addressed this held that an issue have employee/supervisor, [and] who does not otherwise as an cannot held individu- qualify ‘employer,’ liable ally (Wathen under Title VII and similar statutory schemes.” 400, 404; (6th 1997) General Elec. Co. Cir. 115 F.3d see id. at A p. clear consensus now exists. We find the cases concluding supervisory *18 are not liable in both number and reason- individually persuasive ing.
The Court of here also concluded the federal cases do not Appeal apply because of “the significant differences between the federal statutes and the FEHA . . . .” It relied on certain differences in and remedy, aiding 12940, abetting language of section the Fair Em- language indicating ployment Housing (FEHC) Commission issue a written accusation may 12965, against (§ accused . . “person (a), . .” subd. italics [or] added; see also (b), (a), (b).) subd. subds. None of these §§ convince us. In “The points general, and intent of Cali- language, purpose Thus, fornia and federal antidiscrimination acts are identical. in virtually FEHA, California courts have the methods and interpreting adopted prin- federal in ciples by courts discrimination claims developed employment under” the arising federal acts. Benco (Cummings Building Services 53].) The rule to general applies the issue in this case. The substance of the relevant involved language in each here—including “agent” found provision—is analogous federal statutes. differences in and the Any remedy aiding abetting do not language us the intended a rule persuade Legislature regarding unlike the federal liability rule. general language FEHC to issue an accusation a allowing against does not mean that all the FEHA “person” to as provisions apply persons well as The accusation Some of the employers. generally. provisions apply harassment, do, indeed, FEHA such as those to provisions, involving apply (h)(1) as well as subd. persons employers. (E.g., [pro- § Therefore, other from in hibiting “any person” harassing employee].) the FEHC issue as as general, may against accusations well persons employ- however, ers. The discrimination to Gen- provisions, only apply employers. eral to the FEHC issue accusations language permitting against persons some not mean it them in situations does issue all. The Court of may Appeal noted “the amended section specifically Legislature (b), subdivision to include the ‘If the following language: claiming person does not ... aggrieved right-to-sue-notice,— city, county, request [a] or district in a location an enforcement unit ... for the attorney having claims, AIDS/HIV discrimination also bring purpose prosecuting civil action under this labor part against person, employer, organization, (Italics or named in the notice.’ added the Court of employment agency [by This is not before us because “enforce- language no Appeal].)” particular ment unit” is an action for “AIDS/HIV seeking bring against anyone discrimination”; we need not decide whether the reference to accordingly, on individuals not otherwise “person” imposes personal liability qualifying allows an enforcement unit to sue in their employers merely persons not, however, We do believe this narrow representative language capacities. to a civil action an enforcement unit for a referring specific type discrimination intended to was create individual under the FEHA for claim discrimination any brought by anyone.
The Court of also relied on the FEHC’s administrative decisions.
We to the an administrative assign great weight interpretations agency like the FEHC to the statutes under which it gives although operates, *19 must is a of law the courts ultimately statutory interpretation question (Robinson (1992) resolve. v. Fair & Com. Cal.4th Employment Housing 2 226, 782, (Robinson); & fn. 234-235 6 825 Car [5 767] 303, (1975) mona Safety v. Division Industrial Cal.3d 161].) that the 530 P.2d The Court of found Cal.Rptr. Appeal FEHC “has held liable as consistently individually agents (See, for their acts of discrimination and harassment. employer e.g., Dept. 84-16, (1984) Fair Hous. Bee Hive FEHC Answering & Service No. Empl. 1984-1985, Precedential Decs. CEB and individual p. [employer harassment]; liable for sexual discrimination and Fair supervisor Dept. Empl. 85-19, (1985) Decs. & Hous. v. Del Mar Avionics No. FEHC Precedential 1984-1985, liable for CEB found p. employer supervisor [FEHC harassment]; race and sex discrimination and Fair & Hous. v. Dept. Empl. 1990-1991, 90-03, Madera No. FEHC Precedential Decs. County CEB asserts that Gordon is personally p. Department respondent [‘The he acted liable sexual as an under the Act because [for harassment] as an of Madera agent County.’].)” asserts, on these decisions do state what Court
Although Appeal examination, do not they provide strong support plaintiff’s position. considered the treatment of harassment and dis- differing statutory None federal crimination. More rested on now-outdated they solely importantly, The first Fair & authority. finding liability, Dept. Empl. decision individual 84-16, Bee FEHC Precedential Hous. v. Hive Service No. Answering 14-16, 23, 1984-1985, did not itself examine the Decs. CEB pages then federal rule. existing but cited the question only term, “Since neither the nor our define the regulations ‘agent,’ [FEHA] since Title VII also defines by extending coverage any agent (and fails to define we have larger entity similarly ‘agent’), employing examined Title VII law on this Inasmuch as we that Title VII point. find here, (Id. we have chosen to be it.” at precedent applicable guided by p. added.) italics The decision then cited federal district court merely early (Id. decisions that found 15.) Later FEHC decisions liability. p. cited earlier decisions. None simply ever considered on its own question merits. above,
As discussed federal circuit court decisions now overwhelmingly find no individual The older district court decisions liability. which arises, FEHC cited are obsolete. The to what of the FEHC question part should we Its conclusion that title VII interpretation give great weight? Or its reliance on Title precedent applies? now obsolete VII precedent? circumstances, Under the the FEHC conclusion that are individuals person- liable ally is entitled to but little decide consideration. We must the question ourselves. vein,
In a similar
the Court of
also found that
inaction
legislative
in the face of the FEHC
and earlier
court
interpretation
decisions
appellate
Robinson,
(See
indicates acquiescence.
We Janken persuasive on individual between small exempting employers imposing *21 (Janken, 71-72.) at We do not decide supervisors. Cal.App.4th merely whether individuals should be held liable for their but wrongdoing, whether all should be to the threat of a subjected ever-present lawsuit each time make a decision. they Litigation personnel expensive, for the innocent as well as the the threat of wrongdoer. By limiting lawsuits itself, to the the for employer entity ultimately responsible discriminatory actions, has drawn a balance between the of eliminat- Legislature goals discrimination in the burden ing workplace minimizing debilitating on individuals. litigation that, The Court of was also concerned Appeal although ordinarily defendant, will be the sometimes a will be employer “deep pocket” plaintiff unable to recover from and will turn to the individual. Plaintiff defunct, states that the business she sued are has now and she employers that, must look to Baird The Court of personally recovery. stated case, if that is the “it would be unfair to bar Reno from recovering against Baird.” We agree with Janken court’s to a similar concern. response (Janken, at 75.) We do not believe the p. Legislature intended a “legal in which regime were supervisory employees liable after of the personally (Ibid.) . . . .” bankruptcy reasons, For these we conclude that individuals who do not themselves qualify not be sued under employers may the FEHA for discrimi- alleged acts. natory
D. in Violation Discharge Public Policy In FEHA, addition to the cause of action under the plaintiff alleged cause of action for discharge violation of public basis this policy. action, cites, cause of and the (See is the FEHA. public policy plaintiff Gantt (1992) Insurance Sentry 1 Cal.4th Cal.Rptr.2d [4 actions not wrongful discharge declare public 680] [“[C]ourts without a basis in either policy constitutional or statutory provisions.” italics.)].) Our conclusion that (Original not be supervisors may sued under the FEHA likewise to this cause of action. applies
We decided a similar issue in Marralle Jennings v. 8 Cal.4th There, 876 P.2d plaintiff attempted [32 1074]. sue for age discrimination someone too small to as an qualify “employer” under the FEHA. We held she could not do so because “the ‘public policy’ on which relies is not to defendant. He plaintiff is not an applicable to the subject (Id. discrimination of the FEHA.” ‘employer’ age provisions 130; see also p. Stevenson v. Court 16 Cal.4th Superior 894
664 1157].) The same rationale here. 941 Cal.Rptr.2d applies FEHA, to forbid a to sue a under the It would be absurd plaintiff supervisor a rubric. Because then the same action under different essentially allow FEHA, Baird under the she not sue may supervisor plaintiff not sue her for violation may individually wrongful discharge public (1997) 53 (See also Jacobs v. Universal Development Corp. policy. 446]; 62 Weinbaum Cal.App.4th Cal.Rptr.2d Cal.App.4th [53 v. & Cohen Goldfarb, Whitman Cal.App.4th [54 462].) no on whether general question We Cal.Rptr.2d express opinion of the “fundamental discrimination based on medical condition violates one Atlantic (Tameny that will a action. Tameny public policies” support Co., 176.) 27 Cal.3d at p. Richfield
III. Conclusion and remand the matter We reverse the of the Court of judgment for'further consistent this with proceedings opinion. J., Kennard, J., Baxter, J., J.,* C. concurred.
George, Corrigan, MOSK, . I concurin the I write to make two judgment. J separately points.
First, the state: no on the majority express opinion scope “[W]e FEHA Act under the employer liability Housing Employment ] [Fair no on either discrimination or harassment. We specifically express opinion Code section subdivi- language whether Government ‘agent’ [in (d)1] or has some merely sion incorporates respondeat superior principles ante, 658.) other at Yet at least one meaning.” (Maj. p. thing implicit opn., in the As the liability. majority majority opinion respect Janken v. GM Electronics Hughes explain, quoting 741], the and dis- difference between harassment “ crimination is that harassment is ‘not to a necessary job supervisor’s ” “ whereas discrimination involves ‘business always per- performance,’ sonnel decisions . . . of a management inherently necessary performance ” ante, Thus, (Maj. necessary supervisor’s job.’ opn., p. implica- tion is that an not avoid holding majority (FEHA) under the Fair Act Housing discrimination Employment a result not of its but of a rogue that the discrimination was claiming policy own and therefore somehow not within scope supervisor’s prejudices, such decisions is se within making acting employment; supervisor per Three, District, Appeal, Appellate of the Court of First Division *Associate Justice VI, assigned by pursuant the Chief Justice to article section 6 of the California Constitution.' statutory references are to the Government Code. 1All further (Cf. Henry Mayo of his or her Lisa M. v. Newhall scope employment. *23 291, 510, (1995) 12 Cal.4th 301 P.2d Memorial 907 Hospital Cal.Rptr.2d [48 words, that the 358].) In other the other side of the majority’s holding decisions actionable is never liable for illegally discriminatory supervisor “ FEHA, under the he because or she is performing ‘necessary personnel ” ante, 646), duties’ at is that the management (maj. opn., p. supervisor’s is liable. This is consistent with employer always principle “apparently unanimous rule” the United States Court has Supreme recently recognized (42 with to title of the Act of Rights VII Civil U.S.C. 2000e respect § et that “claims against discriminatory seq.), employers employment results, actions with like tangible firing, hiring, promotion, compensation, and work have resulted in once the dis- assignments], employer liability U.S___ (1998) crimination was shown.” v. Boca Raton (Faragher City of _ 2275, 2284, S.Ct. 141 L.Ed.2d {Faragher).) [118 662]
Second, harassment, today’s to discrimination rather than ruling applies is, to discriminatory actions with results” rather “employment tangible than “discrimination hostile environment.” at {Faragher, supra,_U.S. Thus, S.Ct. at 2284].) rule does not p.__[118 p. majority’s foreclose harassment, that in some possibility instances both an discriminatory and a or other will be held liable supervisor employee individually under the FEHA—the latter for (see hostile environment creating 12940, (h)(1)), (see subd. the former to according agency § principles ___ Faragher, 2286-2287); at at supra,_U.S. S.Ct. p. [118 § (i)). subd.
Moreover, the
state that harassment
majority
claims and discrimination
ante,
657.)
claims are based on different
of conduct.
at
types
(Maj. opn.,
p.
Nonetheless, in the case of constructive
these two
of con-
discharge,
types
duct may
when the
claim
converge
discriminatory constructive
discharge
(See
based on
harassment.
Fisher v. San Pedro
atmosphere
pervasive
Peninsula
(1989)
842].)
Hospital
Cal.App.3d
Cal.Rptr.
[262
in the
for both the
Nothing
majority
opinion precludes liability
in such
supervisor
circumstances.
BROWN,
concur in the
I fully
“that individuals who
majority holding
J.
do not themselves
under the
not be sued
FEHA for
qualify
employers may
ante,
alleged
acts.”
I write
discriminatory
(Maj. opn.,
p.
separately
Tameny
{Tameny
cause of action
v. Atlantic
respect
plaintiff’s
Co.
Baxter, J., concurred.