August 23, 2023
The following bulletin is excerpted with permission from At the Lectern, Horvitz & Levy’s blog on the California Supreme Court, written by the blog’s author, David S. Ettinger.
Answering a question posed by the Ninth Circuit, the [California] Supreme Court in Raines v. U.S. Healthworks Medical Group . . . holds that not only an employer but also the employer’s business-entity agents can be subject to liability under the California Fair Employment and Housing Act for an unlawful employment practice.
The court’s unanimous opinion by Justice Martin Jenkins should revive a federal lawsuit described by the Ninth Circuit as a putative class action “seek[ing] to hold defendants, providers of pre-employment medical screenings, liable for asking allegedly invasive and impermissible questions during medical screening exams.”
FEHA defines an “employer” prohibited from engaging in various unlawful employment practices as including “any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly.” In earlier opinions, the court had held that individual employees of the same employer are not subject to FEHA liability, but the court distinguishes those decisions and, relying on several different [federal] circuit Court of Appeals opinions interpreting similar federal law, it concludes, “the agent-inclusive language . . . permits a business-entity agent of an employer to be held directly liable for violation of the FEHA when it carries out FEHA-regulated activities on behalf of an employer” and has at least five employees. The court says its statutory interpretation “is consistent with sound public policy.”