Definition of Employer under FEHA Includes Third Party, Third Parties, Employment Agencies, Employer

Definition of Employer under FEHA Includes Third Party, Third Parties, Employment Agencies, Employer

Under FEHA, “ ‘[e]mployer’ includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly . . . .”

An employer’s business entity agents can be held directly liable under the FEHA for employment
discrimination in appropriate circumstances when the business entity agent has at least five employees and carries out FEHA regulated activities on behalf of an employer. See RAINES v. U.S. HEALTHWORKS MEDICAL GROUP

Section 12926, subdivision (d) states that, for purposes of the FEHA, the term “ ‘[e]mployer’ includes . . . any person acting as an agent of an employer, directly or indirectly . . . .” The most
natural reading of this language is that a “person acting as an agent of an employer” is itself an employer for purposes of the FEHA.

Indeed, this interpretation accounts for and reasonably construes the word “includes” (§ 12926, subd. (d)), a word that, in this context, can only be intended to broaden the scope of the
term “employer.” In addition, because “partnerships, associations, corporations, [and] limited liability companies” come within the FEHA’s definition of the word “ ‘[p]erson’ ” (§ 12925, subd. (d)), it follows that a business-entity agent of a FEHA plaintiff’s employer is, for purposes of the FEHA, an employer of the plaintiff.

Individual Supervisors Can Be Liable Harassment

Section 12940, subdivision (j), which governs harassment, expressly imposes liability on the
employees who are responsible for the harassment.

“An employee of an entity subject to this [harassment] subdivision is personally liable for
any harassment prohibited by this section that is perpetrated by the employee . . . .” (§ 12940, subd. (j)(3).)

The Legislature used express language in section 12940 when it wanted to impose personal liability on employees, and therefore the absence of such language in the retaliation provision (§ 12940, subd. (h)) supported the inference that the Legislature did not intend to impose personal liability on employees for their acts of retaliation. (Jones, at p. 1162– 1163.)

Business Entities and Independent Contractors Are Not Immune

Section 12926, subdivision (d) permits direct liability for other types of agents, such as business
entities acting as independent contractors. (See Reno, supra, 18 Cal.4th at p. 658.)

The California Fair Employment and Housing Act, which defines “employer” to “include[]” “any person acting as an agent of an employer” (§ 12926, subd. (d)), permits a business entity acting as an agent of an employer to be held directly liable as an employer for employment discrimination in violation of the FEHA in appropriate circumstances when the business-entity agent has at least five employees and carries out FEHA regulated activities on behalf of an employer

Individual Supervisors are Immune For Discrimination and Retaliation

“Individuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.” (Reno, at p. 663.)

In Jones, we extended Reno’s holding to a claim of retaliation in violation of section 12940, subdivision (h), holding that supervisorial employees are not liable under the FEHA for
their retaliatory acts. (Jones, supra, 42 Cal.4th at pp. 1173–1174.) We reached that conclusion despite the retaliation provision’s broad wording, which refers not merely to the “employer” but to “any employer, labor organization, employment agency, or person.” (§ 12940, subd. (h), italics
added.)