Reno v. Baird, No. S065473

• Court: United States State Supreme Court (California)
• Writing for the Court: CHIN; GEORGE; MOSK; BROWN; BAXTER
• Citation: 957 P.2d 1333,18 Cal.4th 640,76 Cal.Rptr.2d 499
• Parties: , 957 P.2d 1333, 73 Empl. Prac. Dec. P 45,450, 8 A.D. Cases 563, 98 Cal. Daily Op. Serv. 5586, 98 Daily Journal D.A.R. 7769 Kimberly RENO, Plaintiff and Appellant, v. Marijo BAIRD, Defendant and Respondent
• Decision Date: 16 July 1998
• Docket Number: No. S065473

Page 499

76 Cal.Rptr.2d 499 18 Cal.4th 640, 957 P.2d 1333, 73 Empl. Prac. Dec. P 45,450, 8 A.D. Cases 563, 98 Cal. Daily Op. Serv. 5586, 98 Daily Journal D.A.R. 7769 Kimberly RENO, Plaintiff and Appellant,
v.
Marijo BAIRD, Defendant and Respondent. No. S065473. Supreme Court of California July 16, 1998.

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[18 Cal.4th 643] Lawless, Horowitz & Lawless, Barbara A. Lawless, Phil Hororwitz, San Francisco, and Steven J. Dow, for Plaintiff and Appellant.

Joseph Posner, Encino, Pearson & Hough, Joyce G. Pearson and Susan M. Hough, Sacramento, as Amici Curiae on behalf of Plaintiff and Appellant.

Hoyt, Miller & Angstadt, Eric P. Angstadt, Walnut Creek, and Scott W. Oborne, for Defendant and Respondent.

Daniel E. Lungren, Attorney General, Martin H. Milas, Assistant Attorney General, Christine B. Mersten and Heidi T. Salerno, Deputy Attorneys General, Orrick, Herrington & Sutcliffe, Thomas P. Klein, San Francisco, Ella L. Brown, Los Angeles, Wendy L. Kosanovich, Paul, Hastings, Janofsky & Walker, Paul Grossman and George W. Abele, Los Angeles, as Amici Curiae on behalf of Defendant and Respondent.

CHIN, Justice.

The California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.) ¹ generally prohibits employers from practicing some kinds of discrimination. We must decide whether persons claiming discrimination may sue their supervisors individually and hold them liable for damages if they prove their allegations. We conclude that the FEHA, like similar federal statutes, allows persons to sue and hold liable their employers, but not individuals. Our conclusion also applies to common law actions for wrongful discharge. Accordingly, we reverse the Court of Appeal judgment, which held that individual employees may be sued and held liable, and approve the contrary holding of Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 53 Cal.Rptr.2d 741 (Janken ).

I. PROCEDURAL HISTORY

Plaintiff Kimberly Reno sued several defendants for various causes of action. Two of them are at issue here: (1) employment discrimination based on medical condition in violation of the FEHA, and (2) discharge in violation of public policy. Some of the defendants were business entities; others, including Marijo Baird, were individuals. As relevant here, the complaint alleged that the business entity defendants hired plaintiff as a registered nurse; that these businesses were employers as defined in the FEHA; that the [18 Cal.4th 644] individual defendants, including Baird, "acted as agents ... of [the business defendants] in violating the FEHA and were therefore also employers" as defined in the act; and that the defendants "discriminated

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against plaintiff on the basis of her medical condition, cancer, and discharged plaintiff because of her medical condition, cancer, in violation of" the FEHA and public policy.

Baird moved for summary judgment, arguing that she could not be held individually liable for employment discrimination. The superior court granted the motion. Reno appealed. The Court of Appeal reversed. It held that, under the FEHA, "supervisory agents" who committed the alleged unlawful discrimination, as well as the employer, may be sued and held liable for that discrimination. It expressly disagreed with the contrary conclusion of Janken, supra, 46 Cal.App.4th 55, 53 Cal.Rptr.2d 741.

We granted Baird's petition for review. In addition to the parties, five amici curiae have filed briefs in this court. The California Employment Lawyers Association and a plaintiff in a similar, but separate, action support plaintiff Reno. The Employers Group, the California Employment Law Council, and the Attorney General support defendant Baird.

II. DISCUSSION

A. INTRODUCTION

Two causes of action are at issue here: one under the FEHA and one for wrongful discharge in violation of public policy. (See Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330.) The FEHA prohibits various forms of discrimination in employment. (See Caldwell v. Montoya (1995) 10 Cal.4th 972, 978, fn. 3, 42 Cal.Rptr.2d 842, 897 P.2d 1320.) "There is no doubt that aggrieved persons may, after exhausting their administrative remedies, sue under the statute for civil damages." (Ibid.) Certainly aggrieved persons may sue their employers, but may they also sue individual supervisors?

Although the FEHA prohibits harassment as well as discrimination, it treats them differently. It prohibits "an employer ... or any other person " from harassing an employee. (§ 12940, subd. (h)(1), italics added.) It defines a "person" as including "one or more individuals, partnerships, associations, corporations, limited liability companies, legal representatives, trustees, trustees in bankruptcy, and receivers or other fiduciaries." (§ 12925, subd. (d).) The FEHA, however, prohibits only "an employer" from engaging in improper discrimination. (§ 12940, subd. (a).) In this connection, it defines [18 Cal.4th 645] an "employer" as including "any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly...." (§ 12926, subd. (d).) With regard to harassment, it defines an "employer" as "any person regularly employing one or more persons, or any person acting as an agent of an employer, directly or indirectly...." (§ 12940, subd. (h)(3)(A).)

Recently, we noted that, although a number of cases "have involved individual defendants, with no argument made that they could not be personally liable," "no prior published California decision has directly considered whether FEHA imposes personal liability on an individual employee or manager who causes or assists a covered 'employer' to violate the statute's prohibitions against discriminatory hiring, firing, and personnel practices." (Caldwell v. Montoya, supra, 10 Cal.4th at p. 978, fn. 3, 42 Cal.Rptr.2d 842, 897 P.2d 1320.) We expressly declined to address "that broad and difficult question...." (Id. at p. 979, fn. 3, 42 Cal.Rptr.2d 842, 897 P.2d 1320.) Later, in scholarly decisions, two Courts of Appeal considered the question and reached opposite conclusions. The first, Janken, supra, 46 Cal.App.4th 55, 53 Cal.Rptr.2d 741, which Justice Zebrowski authored, concluded that only the employer, and not individual supervisors, may be sued and held liable. ² The second, the Court of Appeal decision in this case, which Justice

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Lambden authored, concluded that individual supervisors also may be sued. We agree with Janken.

B. The Janken Decision

1. Distinction Between Discrimination and Harassment

The Janken court noted the FEHA's differing treatment of harassment and discrimination. It "conclude[d] that the Legislature's differential treatment of harassment and discrimination is based on the fundamental distinction between harassment as a type of conduct not necessary to a supervisor's job performance, and business or personnel management decisions--which might later be considered discriminatory--as inherently necessary to performance of a supervisor's job." (Janken, supra, 46 Cal.App.4th at pp. 62-63, 53 Cal.Rptr.2d 741.) The court noted that "harassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment [18 Cal.4th 646] consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job. (Cf. Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 301, 48 Cal.Rptr.2d 510, 907 P.2d 358 [sexual assault not motivated by desire to serve employer's interest]; Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 47 Cal.Rptr.2d 478, 906 P.2d 440 [sexual harassment by deputy sheriff not within scope of employment].)

"Discrimination claims, by contrast, arise out of the performance of necessary personnel management duties. While harassment is not a type of conduct necessary to personnel management, making decisions is a type of conduct essential to personnel management. While it is possible to avoid making personnel decisions on a prohibited discriminatory basis, it is not possible either to avoid making personnel decisions or to prevent the claim that those decisions were discriminatory.

"Courts have employed the concept of delegable authority as a test to distinguish conduct actionable as discrimination from conduct actionable as harassment. We adopt this approach to find that the exercise of personnel management authority properly delegated by an employer to a supervisory employee might result in discrimination, but not in harassment. (See Birkbeck v. Marvel Lighting Corp. (4th Cir.1994) 30 F.3d 507, 510 and fn. 1 [distinguishing 'personnel decisions of a plainly delegable character' from harassment]; and Stephens v. Kay Management Co., Inc. (E.D.Va.1995) 907 F.Supp. 169, 171, 173 [no personal liability of individual supervisors for 'employment-related decisions' or ' "personnel decisions of a plainly delegable character" '].) Making a personnel decision is conduct of a type fundamentally different from the type of conduct that constitutes harassment. Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance. No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc. in order to carry out the legitimate objectives of personnel management. Every supervisory employee can insulate himself or herself from claims of harassment by refraining from such conduct. An individual supervisory employee cannot, however, refrain from engaging in the type of conduct which could later give rise to a discrimination claim. Making personnel decisions is an...