BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Adam B. Schiff, Chairman
1999-2000 Regular Session
AB 1856 A
Assembly Member Kuehl B
As Amended April 4, 2000
Hearing Date: August 8, 2000 1
Government Code 8
DLM:cjt 5
6
SUBJECT
Fair Employment and Housing: Harasser Liability
DESCRIPTION
This bill would expressly provide that employees of any
entity covered by the California Fair Employment and
Housing Act (FEHA) are personally liable for their acts of
harassment, regardless of whether their employer knows or
should have known of the conduct and fails to take
immediate and appropriate corrective action.
BACKGROUND
In a recent decision, Carrisales v. Department of
Corrections (1998) 21 Cal. 4th 1132, the Supreme Court of
California held that non-supervisory employees could not be
held personally liable for their harassing conduct under
the Fair Employment and Housing Act. The Carrisales court
found that FEHA only created a cause of action against the
employer and supervisors, narrowly reading the language of
the statute as imposing liability for this "unlawful
employment practice." In reading the law regarding
harassment as a matter of employment practice, the Court
concluded that it was, therefore, a practice engaged in by
employers and supervisors rather than individual employees.
Finding no indication of legislative intent to impose
liability for harassment on non-supervisory employees under
Section 12940(h)(1), the Court refused to extend liability
against the coworker who was personally responsible for the
harassing conduct.
(more)
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However, the Court invited the Legislature to consider
whether coworker liability should be imposed, stating that
such policy arguments regarding the most effective way to
deter harassment, "should be directed to the Legislature,
which can study the various policy and factual questions
and decide what rules are best for society. If the
Legislature believes it necessary or desirable to impose
individual liability on coworkers, it can do so."
Carrisales, Id.
CHANGES TO EXISTING LAW
Existing law provides:
Employers, labor organizations, apprenticeship and
employment training programs, other persons, their
agents, and supervisors, are civilly liable for
harassment of an employee, an applicant for employment,
or a person providing services under a contract, on the
basis of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical
condition, martial status, sex, age, or sexual
orientation.
Harassment of an employee or other covered individual by
an employee other than an agent or supervisor is
actionable if the employer knew or should have known of
the conduct and failed to take immediate and appropriate
corrective action.
Existing case law provides that:
Employers and supervisors may be held personally liable
under FEHA to the harassed party. Page v. Superior Court
(1995) 31 Cal.App. 4th 1206
Non-supervisory employees who harass their coworkers
cannot be held personally liable under FEHA. Carrisales
v. Department of Corrections (1999) 21 Cal. 4th 1132.
This bill would provide that employees of any entity
covered by this subdivision is personally liable for
prohibited harassment perpetrated by the employee
regardless of whether the employer or covered entity knows
or should have known of the conduct and fails to take
AB 1856 (Kuehl)
Page 3
immediate and appropriate corrective action.
COMMENT
1. Stated need for legislation and support
According to the author, AB 1856 is needed to address the
recent California Supreme Court decision in Carrisales v.
Department of Corrections (1999)
21 Cal. 4th 1132. "In Carrisales, the Supreme Court
narrowly read the language of FEHA to hold that a
non-supervisory employee who sexually harassed a coworker
could not be held personally liable under FEHA - even
though his employer and supervisors could be. She
continues, saying, "FEHA already sends a strong message
to employers and workplace supervisors that harassment of
employees will not be tolerated by holding them liable
for workplace harassment. AB 1856 takes the next logical
step by clarifying that errant employees face the same
threat of legal sanctions. By making certain that
harassers are not let off the hook merely because of a
job title, this bill will help stamp out harassment in
the workplace.
"AB 1856 does not change existing law as to what
constitutes harassment. People will not be able to sue
their coworkers for any little thing they find offensive.
In order to create liability under FEHA, the harassment
must be so
severe that it produces an abusive working environment.
This bill does nothing to change that standard. It
provides only that the individual doing the harassing
should be one of the parties held liable for the
conduct."
This bill is sponsored by the California Employment
Lawyers Association (CELA), who say, "AB 1856 will send a
clear message that anyone who sexually harasses
colleagues will have to pay. Why should the harasser be
the only party to escape?"
The California Fair Employment and Housing Commission
adds their support, pointing out that, "The Commission
has previously held that a
non-supervisory co-worker is personally liable for his
AB 1856 (Kuehl)
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sexually harassing conduct toward another employee. (DFEH
v. Lake County Department of Health Services [1998] FEHC
Dec. No. 98-11.) Notwithstanding the Supreme Court's
decision in Carrisales, the Commission believes that the
Fair Employment and Housing Act should be amended as
proposed in AB 1856."
2. The Carrisales decision is in conflict with the Fair
Employment and Housing Commission (and other's)
interpretation of the FEHA
In the Carrisales case, an employee of the Department of
Corrections sued the Department, two of her supervisors
and a coworker for sexual harassment in violation of
FEHA. She alleged that her coworker repeatedly sexually
harassed her, and that her supervisors failed to take
immediate and appropriate corrective action despite
knowledge of the harassment. The issue before the court
was whether an employee could be held personally liable
to a coworker for sexual harassment under the FEHA. The
Court concluded that the FEHA does not apply to actions
between coworkers not involving a supervisorial
relationship, and therefore coworkers could not be liable
to each other for unlawful harassment.
The Court looked at the language of Government Code
Section 12940(h)(1), which provides in relevant part
that, "It shall be an unlawful employment practice?for an
employer?or any other person, because of?sex?to harass an
employee or applicant. Harassment of an employee or other
covered individual by an employee other than an agent or
supervisor is actionable if the employer knew or should
have known of the conduct and failed to take immediate
and appropriate corrective action."
In reading the law regarding harassment as a matter of
employment practice, the Court concluded that it was,
therefore, a practice engaged in by employers and
supervisors rather than individual employees. The Court
stated, "If an employee other than an agent or
supervisor commits the harassment, and the employer takes
immediate and appropriate corrective action when it
becomes or reasonably should become aware of the
conduct--for example, when the victim or someone else
informs the employer--there simply is no 'unlawful
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employment practice' that the FEHA governs?If the
employer fails to take such action, there may be an
unlawful employment practice, but it is by the employer,
not the coworker." Carrisales, supra.
The Court goes on to say, "Our role here is to interpret
the statute, not to establish policy. The latter role is
for the Legislature. If the Legislature believes it
necessary or desirable to impose individual liability on
coworkers, it can do so." Carrisales, supra.
In reaching its conclusion, the Carrisales court stated
that, "In urging that a coworker is personally liable for
harassment under the FEHA, plaintiff relies primarily on
the statutory reference to 'any other person.' ?
Plaintiff argues that, because the statute prohibits any
person from committing harassment, it makes a coworker
like Selkirk personally liable for harassing her. We
disagree."
However, other authorities had earlier interpreted the
language in the same fashion as the plaintiff - including
the Fair Employment and Housing Commission, the agency
charged with enforcement of the FEHA. In two separate
precedential decisions, Department of Fair Employment
Housing v. Lake County Department of Health Services
(1998) No. 98-11, FEHC Precedential Decs. 1998-1999 CEB
__; Department of Fair Employment and Housing v. Madera
County (1990), FEHC Dec. No. 90-03, 1990-91, CEB 1, the
Commission held non-supervisory coworkers liable for
harassment under Section 12940(h).
In addition, the Wilcox treatise on employment law,
California Employment Law, states that individual
coworkers may be held liable. "Under the FEHA, employees
may be individually liable for harassing conduct. That
liability flows from two statutory provisions. First,
Government Code Section 12940(h)(1) not only prohibits
employers, labor organizations, employment
agencies, and training programs from engaging in
harassment, but also prohibits 'any other person' from
engaging in such behavior. Second, Government Code
Section 12925(d) defines a 'person' to include 'one or
more
individuals.'" (2 Wilcox, California Employment Law
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(1998 supp.) Section 41.81 (6) (e), p. 41-280.)
3. Opposition
The vast number of opponents argue that employer - not
employee -- liability is the best means to deter
harassment, as employers have effective means available
to affect the behavior of individual employees. The
California Labor Federation, for example, states that "if
employees know that those who engage in unlawful
harassment will be fired, they have a strong incentive
not to behave in that manner. Assuming arguendo that the
current liability scheme is not adequate, as the
proponents claim, then perhaps we should impose greater
liability on employers for failing to uphold their
responsibility to provide a harassment free workplace."
The California Employment Law Council states in another
popular line of opposition to the bill, "The evil of this
bill is that whenever a plaintiff sues a company for
harassment, it is an easy matter to name every individual
employee at the company whoever said a bad word to the
plaintiff. Since hostile environment harassment is
generally a collection of things, one or two comments by
a low-level employee which together with lots of other
things make up the harassment might be considered to be
'perpetrated by the employee.'"
The Traditional Values Coalition also opposes the bill
for similar reasons, stating "[E]mployees who do express
their objection for moral or religious convictions that
homosexuality or bisexuality is not the legal equivalent
to heterosexuality would be guilty of harassment and
thereby liable in a court of law."
Finally, the Association of California Water Agencies
states that, "AB 1856 attempts to provide for personal
liability and, though well-intentioned, is inappropriate
under the FEHA, which is intended to address employment
practices. The existing law provides remedies for a
victim of harassment to pursue against a coworker under
the Tort Claims Act, which is
intended to address personal liability..."
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4. Existing tort remedies would not reach all FEHA
prohibited conduct
As some opponents point out, under existing law, a person
subjected to harassment in the workplace can sue his or
her harasser in tort for battery or
intentional infliction of emotional distress (IIED)
depending on the behavior in question.
Where harassment takes the form of actual physical
contact (unwanted touching, kissing, or embracing) a
plaintiff may bring suit under a theory of battery or
sexual battery. However, such a suit is only possible
where there is physical contact though touching a
personal or intimate part through the person's clothing
would be sufficient.
In order to prevail on a claim of intentional infliction
of emotional distress, the plaintiff must show that the
behavior in question was extreme and outrageous, and that
the plaintiff suffered severe emotional distress as a
result of the behavior. Whereas under FEHA the plaintiff
need only show that the behavior was sufficient to alter
the conditions of the workplace.
According to the supporters of AB 1856, "The inadequacies
of these theories to protect those who suffer harassment
in the workplace highlight the need for a statute such as
FEHA to create liability as a means of deterring and
redressing unlawful workplace conduct."
The author asserts, "Tort law is intended to allow those
who suffer wrongs to be compensated for those wrongs.
FEHA is California's statutory means of making harassing
behavior in the workplace unlawful, regardless of whether
it rises to the level likely to allow for recovery in
tort. It seems only logical, and indeed fair, that this
law should impose liability on those persons directly
responsible for harassment as well as on employers."
It is true that there is a wide range of behavior that
might not be sufficiently outrageous to meet the IIED
standard that nonetheless would be unlawful under FEHA,
particularly when continuing over time. These relatively
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minor, incidents may not form a basis for action in tort,
could aggregate to constitute a hostile work environment
claim under FEHA.
5. Prior related legislation
SB 953 (Watson) of 1995 in relevant part would have
provided that an employee or agent is held personally
liable for harassment of another employee, in addition to
the employer's liability. That measure also contained a
controversial extension of strict liability to employers
and supervisors, regardless of whether the harassing
behavior was known, or should have been known. SB 953
died on the Senate Floor.
Interestingly, the Senate Judiciary Committee analysis of
SB 953 stated that the provision creating personal
liability for harassing employees was declarative of
then-existing law, citing Mathews v. Superior Court of
Los Angeles County (1995) 34 Cal. App. 4th 598. "In
Mathews the court held that both the statutes and case
law clearly find that individual defendants are 'persons'
subject to individual personal liability for actions in
which they participated." Judiciary Committee Analysis of
SB 563 (Watson), May 9, 1995.
The Mathews court addressed the issue of individual
liability for supervisorial employees. However, the
holding was more broadly stated, " Our holding that the
responsibility for such acts must be borne both by the
offender as well as the employer who tolerates the
offense is consistent with the Legislature's intent to
provide 'effective remedies which will eliminate such
discriminatory practices.'" Mathews, supra.
AB 519 (Aroner) Ch. 964, Stats of 1999, revised the
Civil Code prohibitions
against sexual harassment in professional and business
settings to generally conform to the legal standards
under FEHA. Specifically, the bill provided that:
Verbal, visual, and physical conduct of a sexual nature,
or hostile nature based upon gender, are covered forms of
sexual harassment.
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Page 9
The scope of actionable conduct must be "pervasive."
A victim of sexual harassment need not verbally ask the
harasser to stop the offensive conduct in order to be
entitled to seek legal redress.
Emotional distress and violations of a plaintiff's
statutory or constitutional rights are injuries and/or
harm within the meaning of the law.
Support: California Fair Employment and Housing
Commission; State of California Commission of the
Status of Women; Protection & Advocacy, Inc; Women
Lawyers' Alliance; Western Center on Law and
Poverty; California Rural Legal Assistance
Foundation; National Women's Political Caucus of
California; Equal Rights Advocates; Consumer
Attorneys of California; City of West Hollywood;
California Women Lawyers; California Federation of
Business and Professional Women; American Civil
Liberties Union; American Association of University
Women; National Organization for Women; numerous
individuals
Opposition: Association of Water Agencies; California
Labor Federation,
AFL-CIO; California Professional Firefighters;
Traditional Values Coalitions; California
Employment Law Council; Motion Picture
Association of America; California Group; League
of California Cities; California Manufacturers &
Technology Association; California Chamber of
Commerce; California State Association of
Counties; Campaign for California Families
AB 1856 (Kuehl)
Page 10
HISTORY
Source: California Employment Lawyers Association
Related Pending Legislation: None Known
Prior Legislation: AB 519 (Aroner) Ch. 964, Statutes of
1999;
SB 953 (Watson) of 1995
Prior Vote: Assemble Judiciary Committee (10-5); Assembly
Floor (42-31); Senate Industrial Relations
Committee (4-2)
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