Liability for Harassment of Non-Employees

The California Fair Employment and Housing Act not only protects applicants and employees against unlawful harassment, it also protects persons providing services pursuant to a contract. The protection for those providing contract services is not new. It was added to the FEHA in 2000. We do, however, have a new decision from the California Court of Appeal which interprets the protection broadly (Hirst v. City of Oceanside, DO64549 CCA 4th District, May 8, 2015). The case was filed by Kimberli Hirst who was a phlebotomist employed by American Forensic Nurses, Inc. (AFN). Her employer had a contract with the City of Oceanside to provide phlebotomists to take blood samples from intoxication suspects held by the City’s police department. Hirst sued the City and alleged that a particular police officer engaged in graphic sexual harassment during the times she visited the police department to take blood samples. The City argued that Hirst could not use the FEHA to sue because the City was not her employer and that she was not “a person providing services pursuant to a contract” as that terms was intended under the FEHA. The City argued that AFN was Hirst’s employer and it was the “person” providing contract services to the City. The City pointed to the legislative history of the “person providing services” addition in 2000; history that indicated the Legislature was concerned about protecting workers who owned their own businesses, worked as independent contractors and had no traditional employer who could be held responsible for protecting the worker from harassment. The City argued that Hirst did not fit this category because her employer, AFN, could be held liable for the police officer’s harassment. Reviewing the plain language of the statute as well as the legislative history, both the trial court and the court of appeal rejected the City’s argument. The court of appeal noted that recovery against an employer for a non-employee’s acts depends on the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of those non-employees. This would have provided Hirst with less protection than the direct liability resulting from the acts of a supervisory employee and the court felt that the City was in the best position to control the behavior of the police officer. The court found nothing in the statutory language or the legislative history suggesting the Legislature intended that a contract worker be precluded from recovery as a matter of law because he or she has an alternative (but less direct and potentially less effective) means for redress of harassment. The case highlights the importance of proper training and monitoring of supervisory employees. Not only can your supervisors’ conduct create direct liability to your applicants and employees, they can also create direct liability to virtually any person working for your organization under a contract. The case can be found here.