By Paul James
In the recent decision, Hirst v. City of Oceanside, the Fourth District Court of Appeal clarified the reach of the Fair Employment and Housing Act (FEHA) with regard to employees of independent contractors. The Hirst case involved a sexual harassment claim brought by an employee of a contractor for the Police Department for the City of Oceanside, CA. Plaintiff was a phlebotomist who worked for a contractor for the City on an on-call basis. After a substantial damage award at trial, the City filed a motion for Judgment Notwithstanding the Verdict (JNOV) on grounds that Plaintiff did not have standing to bring FEHA claims against. The City appealed the denial of the JNOV motion.
On appeal, the City contended that because Plaintiff was an employee of company that had contracted to provide services to the City, Plaintiff did not qualify as an “employee, an applicant, or or a person providing services pursuant to a contract” entitled to protection under Cal. Gov. Code §12940(j). In support of this argument, the City argued that Plaintiff herself was not a party to a contract with the City and that Plaintiff’s sexual harassment claims could be redressed by an action against her employer.
Government Code Section 12940(j)(5) defines a “person providing services pursuant to a contract" as one who: 1) "has the right to control the performance of the contract for services and discretion as to the manner of performance"; (2) "is customarily engaged in an independently established business"; and (3) "has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer's work." The Court held that Plaintiff met the above criteria because the City did not exercise authority over Plaintiff and Plaintiff provided her own equipment and used own professional judgment in the performance of her work.
In response to the argument that the Legislature did not intend for the FEHA statue to extend to employees of independent contractors, the Court held that one does not need to be the actual contracting party in order to qualify as a person “providing services pursuant to a contract” under section §12940(j). The Court further reasoned that limiting Plaintiff’s remedy to a claim against her own employer would provide insufficient protection because Plaintiff’s employer would only face liability if the employer exercised the requisite control over the non-employee’s conduct. The Court found that Plaintiff’s employer had little bargaining power with the City and few mechanisms to address the behavior of the conduct of the City’s employee.
The Hirst decision demonstrates the trend of expanding FEHA protections to non-employees. Consistent with this trend, the FEHA statute was amended in 2014 to extend protections against discrimination and harassment to “unpaid interns or volunteers.” (See: Govt. Code §12940(j)(1).)
