Definition of Employer under FEHA Includes Third Party, Third Parties, Employment Agencies, Employer<\/p>\n\n\n\n
Under FEHA, \u201c \u2018[e]mployer\u2019 includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly . . . .\u201d<\/p>\n\n\n\n
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An employer\u2019s 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<\/p>\n\n\n\n
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Section 12926, subdivision (d) states that, for purposes of the FEHA, the term \u201c \u2018[e]mployer\u2019 includes . . . any person acting as an agent of an employer, directly or indirectly . . . .\u201d The most
natural reading of this language is that a \u201cperson acting as an agent of an employer\u201d is itself an employer for purposes of the FEHA. <\/p>\n\n\n\n
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Indeed, this interpretation accounts for and reasonably construes the word \u201cincludes\u201d (\u00a7 12926, subd. (d)), a word that, in this context, can only be intended to broaden the scope of the
term \u201cemployer.\u201d In addition, because \u201cpartnerships, associations, corporations, [and] limited liability companies\u201d come within the FEHA\u2019s definition of the word \u201c \u2018[p]erson\u2019 \u201d (\u00a7 12925, subd. (d)), it follows that a business-entity agent of a FEHA plaintiff\u2019s employer is, for purposes of the FEHA, an employer of the plaintiff.<\/p>\n\n\n\n
<\/p>\n\n\n\n
Individual Supervisors Can Be Liable Harassment<\/p>\n\n\n\n
Section 12940, subdivision (j), which governs harassment, expressly imposes liability on the
employees who are responsible for the harassment. <\/p>\n\n\n\n
<\/p>\n\n\n\n
\u201cAn 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 . . . .\u201d (\u00a7 12940, subd. (j)(3).)<\/p>\n\n\n\n
<\/p>\n\n\n\n
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 (\u00a7 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\u2013 1163.)<\/p>\n\n\n\n
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Business Entities and Independent Contractors Are Not Immune <\/p>\n\n\n\n
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.)<\/p>\n\n\n\n
<\/p>\n\n\n\n
The California Fair Employment and Housing Act, which defines \u201cemployer\u201d to \u201cinclude[]\u201d \u201cany person acting as an agent of an employer\u201d (\u00a7 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<\/p>\n\n\n\n
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Individual Supervisors are Immune For Discrimination and Retaliation<\/p>\n\n\n\n
\u201cIndividuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.\u201d (Reno, at p. 663.)<\/p>\n\n\n\n
In Jones, we extended Reno\u2019s 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\u20131174.) We reached that conclusion despite the retaliation provision\u2019s broad wording, which refers not merely to the \u201cemployer\u201d but to \u201cany employer, labor organization, employment agency, or person.\u201d (\u00a7 12940, subd. (h), italics
added.)<\/p>\n","protected":false},"excerpt":{"rendered":"
Definition of Employer under FEHA Includes Third Party, Third Parties, Employment Agencies, Employer Under FEHA, \u201c \u2018[e]mployer\u2019 includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly . . . .\u201d An employer\u2019s business entity agents can be held directly liable under the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"yoast_head":"\n