Raines v. U.S. Healthworks Medical Group

IN THE SUPREME COURT OF

CALIFORNIA

KRISTINA RAINES et al.,

Plaintiffs and Appellants,

v.

U.S. HEALTHWORKS MEDICAL GROUP et al.,

Defendants and Respondents.

S273630

Ninth Circuit

21-55229

Southern District of California

3:19-cv-01539-DMS-DEB

August 21, 2023

Justice Jenkins authored the opinion of the Court, in which

Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,

Groban, and Evans concurred.

RAINES v. U.S. HEALTHWORKS MEDICAL GROUP

S273630

Opinion of the Court by Jenkins, J.

This case requires us to clarify the meaning of the term

“employer” as used in the California Fair Employment and

Housing Act (FEHA) (Gov. Code,1 § 12900 et seq.). Subject to

specified exceptions, section 12940 of the FEHA makes it an

“unlawful employment practice” for “any employer” “to make

any medical or psychological inquiry of an applicant” (§ 12940,

subd. (e)(1)), and section 12926, subdivision (d) states that, for

purposes of the FEHA, the term “ ‘[e]mployer’ includes any

person regularly employing five or more persons, or any person

acting as an agent of an employer, directly or indirectly . . . .”

(Italics added.) The italicized language might be interpreted as

merely incorporating the common law principle of respondeat

superior, or some variant thereof, into the FEHA’s statutory

liability. Were we to adopt this interpretation of the statutory

language, liability for a violation of the statute would reside

with the employer, not with the employer’s agent.2 Conversely,

the italicized language could also be reasonably interpreted to

mean that an employer’s agents are subject to all the obligations

and liabilities that the FEHA imposes on the employer itself.

1

All further undesignated statutory references are to the

Government Code.

2

When we use the term “employer” without any

qualification, we use it in the ordinary common law sense, not

in a sense specially defined by a statute such as the FEHA.

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Recognizing this ambiguity, the United States Court of Appeals

for the Ninth Circuit asked this court to answer the following

question: “Does California’s Fair Employment and Housing Act,

which defines ‘employer’ to include ‘any person acting as an

agent of an employer,’ Cal. Gov’t Code § 12926(d), permit a

business entity acting as an agent of an employer to be held

directly liable for employment discrimination?” (Raines v. U.S.

Healthworks Medical Group (9th Cir. 2022) 28 F.4th 968, 969.)

We conclude that an employer’s business entity agents can be

held directly liable under the FEHA for employment

discrimination in appropriate circumstances when the business-

entity agent has at least five employees and carries out FEHA-

regulated activities on behalf of an employer.

I. FACTS AND PROCEDURAL BACKGROUND

Plaintiffs Kristina Raines and Darrick Figg, on behalf of

themselves and a putative class, allege that they received offers

of employment that were conditioned on successful completion

of preemployment medical screenings to be conducted by

defendant U.S. Healthworks Medical Group (USHW), who was

acting as an agent of plaintiffs’ prospective employers. Plaintiffs

assert that USHW and its affiliates and successors (collectively,

defendants) are “the nation’s and California’s largest providers

of occupational health.” Plaintiffs claim that as part of its

medical screenings, USHW required job applicants to complete

a written health history questionnaire that included numerous

health-related questions having no bearing on the applicant’s

ability to perform job-related functions. According to plaintiffs,

these questions covered details of the applicant’s health history

including “whether the applicant has and/or has ever had: 1)

venereal disease; 2) painful or irregular vaginal discharge or

pain; 3) problems with menstrual periods; 4) irregular

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Opinion of the Court by Jenkins, J.

menstrual period; 5); penile discharge, prostate problems,

genital pain or masses; 6) cancer; 7) mental illness; 8) HIV; 9)

permanent disabilities; 10) painful/frequent urination; 11) hair

loss; 12) hemorrhoids; 13) diarrhea; 14) black stool; 15)

constipation; 16) tumors; 17) organ transplant; 18) stroke; or 19)

a history of tobacco or alcohol use.” In addition, the

questionnaire asked whether the job applicant was pregnant,

sought information regarding medications taken, and required

the job applicant to disclose prior job-related injuries and

illnesses.

Plaintiff Kristina Raines received an offer from Front

Porch Communities and Services (Front Porch) for a position as

a food service aide, but the offer was conditioned on her passing

the preemployment medical screening conducted by USHW.

Raines alleges that she responded to most of the questions on

the written questionnaire, but she declined to answer the

question about the date of her last menstrual period. She

alleges that the exam was then terminated, and Front Porch

revoked its offer of employment.

Plaintiff Darrick Figg received an offer from the San

Ramon Valley Fire Protection District to serve as a member of

the volunteer communication reserve, but his offer, too, was

conditioned on his passing the preemployment medical

screening conducted by USHW. Figg alleges that he answered

all the questions, successfully passed the screening, and was

hired for the position.

Raines filed a state court action against Front Porch and

USHW. After she later filed a first amended complaint that

added additional defendants and class claims, defendants

removed the action to federal court. (See 28 U.S.C. § 1332(d).)

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Opinion of the Court by Jenkins, J.

There, Raines filed a second amended complaint, adding Figg as

a named plaintiff, dismissing Front Porch as a defendant

(pursuant to a settlement), and adding additional defendants.

Defendants successfully moved to dismiss (see Fed. Rules

Civ.Proc., rule 12(b)(6), 28 U.S.C.), and plaintiffs then filed a

third amended complaint. That complaint, which is the

operative complaint, alleges claims under the FEHA, the Unruh

Civil Rights Act (Civ. Code, § 51 et seq.), unfair competition law

(Bus. & Prof. Code, § 17200 et seq.), and the common law right

of privacy.

Defendants again moved to dismiss, and the district court

granted the motion with prejudice as to all claims except

plaintiffs’ unfair competition law claim. In dismissing plaintiffs’

FEHA claim, the district court concluded that the FEHA does

not impose liability on the agents of a plaintiff’s employer.

As to plaintiffs’ unfair competition law claim, the district

court had granted dismissal without prejudice, but plaintiffs

requested an order dismissing the claim with prejudice, and the

district court granted their request. Plaintiffs then appealed the

dismissal of their other claims. After holding oral argument, the

United States Court of Appeals for the Ninth Circuit asked this

court to answer the question quoted on page 2, ante.

II. DISCUSSION

At issue in this case is the proper interpretation of the

definition of “ ‘[e]mployer’ ” in section 12926, subdivision (d). In

part II.A., we discuss our prior decisions interpreting that

provision and conclude that they do not resolve the question the

Ninth Circuit has put before us. In part II.B., we examine the

text of section 12926, subdivision (d); its legislative history; the

interpretation federal courts have given to federal

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Opinion of the Court by Jenkins, J.

antidiscrimination laws that use similar language; and public

policy considerations. Our examination of these indicators of

legislative intent leads us to conclude that the agent-inclusive

language of section 12926, subdivision (d) 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. Lastly, in part II.C., we consider and

reject defendants’ arguments in favor of a contrary

interpretation.

A. The Relevance of Reno v. Baird and Jones v.

Lodge at Torrey Pines

As noted on page 1, ante, section 12926, subdivision (d)

provides that, for purposes of the FEHA, the term “ ‘[e]mployer’

includes any person regularly employing five or more persons,

or any person acting as an agent of an employer, directly or

indirectly . . . .” We have explored the meaning of this provision

in two cases: Reno v. Baird (1998) 18 Cal.4th 640 (Reno) and

Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th

1158 (Jones).

The issue in Reno was whether an employer’s supervisory

employees could be held personally liable under the FEHA for

their acts of employment discrimination. The plaintiff in Reno

alleged discrimination and wrongful discharge, and she sued,

among others, the individual supervisors who, she alleged, were

directly responsible for the alleged discriminatory acts. She

argued that the individual defendants, as agents of her

employers, could be held personally liable under the plain

meaning of section 12926, subdivision (d), which makes “any

person acting as an agent of an employer” into an “ ‘[e]mployer’ ”

for purposes of the FEHA. (See Reno, supra, 18 Cal.4th at pp.

643–644, 647.) We concluded that the agent-inclusive language

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Opinion of the Court by Jenkins, J.

of section 12926, subdivision (d) does not impose liability on all

agents, including individual employees of the same employer,

and adopting that interpretation of section 12926, subdivision

(d) would be inconsistent with the provision’s express exemption

for employers with fewer than five employees. (Reno, at pp. 647,

650–651.) In so concluding, we noted “ ‘the incongruity that

would exist if small employers [with fewer than five employees]

were exempt from liability while individual nonemployer

supervisors were at risk of personal liability.’ ” (Id. at p. 651,

quoting Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th

55, 71.) We added: “ ‘The Legislature clearly intended to protect

employers of less than five from the burdens of litigating

discrimination claims. [Citation.] . . . [I]t is “inconceivable” that

the Legislature simultaneously intended to subject individual

nonemployers to the burdens of litigating such claims.’ ” (Reno,

at p. 651, quoting Janken v. GM Hughes Electronics, at p. 72.)

We further explained that imposing personal liability on

supervisory employees would severely damage the exercise of

supervisory judgment because supervisors would fear that their

routine workplace decisions might lead to personal financial

ruin. Among other things, this possibility would cause

supervisors to have interests in conflict with those of their

employers. (Reno, supra, 18 Cal.4th at pp. 651–653.) In

addition, we noted that corporate decisions are often made

collectively, and therefore assessing individual blame in a

particular case of discrimination might be difficult. Individual

employees might even find themselves pitted against one

another, trying to protect their own interests. (Id. at p. 662.)

Finally, we commented that defending even an unmeritorious

lawsuit can be expensive, and supervisors should not have to

face that cost every time they make a routine personnel decision.

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(Id. at p. 663.) For these reasons, we concluded in Reno that,

notwithstanding the agent-inclusive language of section 12926,

subdivision (d), “individuals who do not themselves qualify as

employers may not be sued under the FEHA for alleged

discriminatory acts.” (Reno, at p. 663.)

In Reno, however, we declined to address the question

presented in this case: whether section 12926, subdivision (d)

permits direct liability for other types of agents, such as business

entities acting as independent contractors. (See Reno, supra, 18

Cal.4th at p. 658.)3

In Jones, we extended Reno’s holding to a claim of

retaliation in violation of section 12940, subdivision (h), holding

that supervisorial employees are not liable under the FEHA for

their retaliatory acts. (Jones, supra, 42 Cal.4th at pp. 1173–

1174.) We reached that conclusion despite the retaliation

provision’s broad wording, which refers not merely to the

“employer” but to “any employer, labor organization,

employment agency, or person.” (§ 12940, subd. (h), italics

added.) Our reasoning closely tracked our analysis in Reno.

Noting, among other things, the FEHA’s exemption for

employers having fewer than five employees (Jones, at p. 1165),

we reasoned that it would be incongruous to hold a supervisor

liable for retaliation while exempting small employers from such

liability (id. at pp. 1167–1168). We said: “All of the[] reasons

[we gave in Reno] for not imposing individual liability for

3

Because Reno, supra, 18 Cal.4th 640 expressly reserved

the question we are now deciding, we cannot draw any strong

conclusion from the Legislature’s failure to amend the FEHA’s

definition of employer during the more than two decades since

we decided that case.

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Opinion of the Court by Jenkins, J.

discrimination — supervisors can avoid [doing acts of]

harassment but cannot avoid [making] personnel decisions, it is

incongruous to exempt small employers but to hold individual

nonemployers liable, sound policy favors avoiding conflicts of

interest and the chilling of effective management, corporate

employment decisions are often collective, and it is bad policy to

subject supervisors to the threat of a lawsuit every time they

make a personnel decision — apply equally to retaliation.” (Id.

at p. 1167.) We also noted that section 12940, subdivision (j),

which governs harassment, expressly imposes liability on the

employees who are responsible for the harassment. It provides

(as it did when Jones was decided): “An employee of an entity

subject to this [harassment] subdivision is personally liable for

any harassment prohibited by this section that is perpetrated by

the employee . . . .” (§ 12940, subd. (j)(3).) That provision, in our

view, made it clear that the Legislature used express language

in section 12940 when it wanted to impose personal liability on

employees, and therefore the absence of such language in the

retaliation provision (§ 12940, subd. (h)) supported the inference

that the Legislature did not intend to impose personal liability

on employees for their acts of retaliation. (Jones, at p. 1162–

1163.)4

4

In deciding Reno, we did not consider subdivision (j)(3) of

section 12940 because the text of that subdivision was first

added to section 12940 after Reno was decided. (See Stats. 2000,

ch. 1047, § 1, p. 7690.) We did, however, note that the term

“employer” is specially defined for purposes of the FEHA’s

harassment provision, omitting the exemption for employers

having fewer than five employees. (See Reno, supra, 18 Cal.4th

at pp. 645, 650.) That and other provisions of section 12940

made clear that section 12940 treats harassment differently

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Although we directly address in part II.B., post, whether

section 12926, subdivision (d) permits FEHA liability for

business-entity agents of employers, it is useful here to highlight

the ways in which the considerations that motivated our

decisions in Reno and Jones are either absent or much

diminished in a case, like this one, involving a business-entity

agent with five or more employees.5 At least in cases involving

a business-entity agent with five or more employees, the

incongruity of imposing liability on the agent while exempting

employers with fewer than five employees does not exist. In

addition, such a business-entity agent will likely perform a

narrowly defined task for multiple clients over the course of

several years. Thus, it more likely can bear the cost of legal

counsel to ensure that its policies and methods meet applicable

statutory and common law standards. As to the potential for

conflicts of interest between the agent and the employer, it is

perhaps true that a business-entity agent’s interest in

minimizing its own liability might sometimes conflict with the

interests of the employer that has hired it. However, a business-

entity agent is more likely than an employee agent to have

from discrimination. (Reno, at pp. 645, 650.) We also noted that

the conduct that might lead to a harassment claim is avoidable,

but a supervisor cannot avoid making personnel decisions

despite the risk that such decisions could lead to a claim of

discrimination. (Id. at pp. 645–646.)

5

As noted, plaintiffs allege that USHW and its affiliates

and successors (defendants here) are large business enterprises

operating on a national scale, and our analysis takes that

allegation into consideration. The question of whether, and to

what extent, the analysis we apply here would apply to a

business-entity with fewer than five employees is not before us.

Accordingly, we express no view on that question.

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comparable bargaining power to the employer, enabling it to

negotiate such differences at the time that it initiates or renews

its business relationship with the employer. Indeed, such

negotiations might include the question of indemnification

regarding any potential FEHA liability that might arise.

Finally, the role of a business-entity agent is often formally

defined by the terms of its contract with the employer.

Therefore, its fault, if any, for the employer’s actions can be

easily determined.

In short, in a case involving a business-entity agent, the

competing statutory mandates that we needed to harmonize in

Reno and Jones do not come into play, and the policy arguments

that informed our analysis in those cases apply, if at all, with

much less force. Hence, Reno and Jones do not control the

outcome here. With that in mind, we turn to address the Ninth

Circuit’s question.

B. Section 12926, Subdivision (d)

When as here we are interpreting a statutory provision,

“ ‘ “ ‘[o]ur fundamental task . . . is to determine the Legislature’s

intent so as to effectuate the law’s purpose. We first examine

the statutory language, giving it a plain and commonsense

meaning. . . . If the language is clear, courts must generally

follow its plain meaning unless a literal interpretation would

result in absurd consequences the Legislature did not intend. If

the statutory language permits more than one reasonable

interpretation, courts may consider other aids, such as the

statute’s purpose, legislative history, and public policy.’

[Citation.] ‘Furthermore, we consider portions of a statute in

the context of the entire statute and the statutory scheme of

which it is a part, giving significance to every word, phrase,

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Opinion of the Court by Jenkins, J.

sentence, and part of an act in pursuance of the legislative

purpose.’ ” ’ ” (Brennon B. v. Superior Ct. (2022) 13 Cal.5th 662,

673.) Consistent with this approach, we begin our analysis by

examining the plain meaning of section 12926, subdivision (d).

We conclude that the provision’s most natural reading imposes

FEHA liability on the business-entity agents of employers, but

the provision is not without some ambiguity. Therefore, we

examine the relevant legislative history of the provision, federal

cases interpreting federal antidiscrimination laws that use

similar language, and public policy considerations. These

indicators of legislative intent serve to confirm our conclusion

that section 12926, subdivision (d) can impose direct liability on

the business-entity agents of employers for their FEHA-

regulated activities.

1. Plain Meaning

Section 12926, subdivision (d) states that, for purposes of

the FEHA, the term “ ‘[e]mployer’ includes . . . any person acting

as an agent of an employer, directly or indirectly . . . .” The most

natural reading of this language is that a “person acting as an

agent of an employer” is itself an employer for purposes of the

FEHA. Indeed, this interpretation accounts for and reasonably

construes the word “includes” (§ 12926, subd. (d)), a word that,

in this context, can only be intended to broaden the scope of the

term “employer.” In addition, because “partnerships,

associations, corporations, [and] limited liability companies”

come within the FEHA’s definition of the word “ ‘[p]erson’ ”

(§ 12925, subd. (d)), it follows that a business-entity agent of a

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Opinion of the Court by Jenkins, J.

FEHA plaintiff’s employer is, for purposes of the FEHA, an

employer of the plaintiff.6

Defendants, however, point out that we reached a

different conclusion in Reno, supra, 18 Cal.4th 640, holding that

the agent-inclusive language of section 12926, subdivision (d)

does not extend FEHA liability to agents. Defendants’ argument

misconstrues the scope of our holding in Reno. In Reno, we did

not categorically reject the natural reading of section 12926,

subdivision (d), a reading that supports the conclusion here that

the FEHA can impose liability on certain business-entity

agents. Rather, employing the principle that the provisions of a

statute are to be interpreted in light of their context, we found

it inconceivable that the Legislature simultaneously exempted

from FEHA liability employers of fewer than five employees

while imposing FEHA liability on supervisorial employees.

(Reno, at p. 651.)

The incongruity we identified in Reno is simply not

present in a case like this one. (See p. 9, ante.) But as Reno

implicitly recognized, the natural reading of section 12926,

subdivision (d) that we have described is not the only possible

interpretation of the provision. (See Reno, supra, 18 Cal.4th at

p. 658 [expressing “no opinion on whether the ‘agent’ language

merely incorporates respondeat superior principles”].)

Therefore, we will examine other indicators of legislative intent

in order to confirm the correct interpretation of the statutory

language.

6

Section 12926, subdivision (d) creates an express

exception for “religious association[s] or corporation[s] not

organized for private profit.”

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2. Legislative History

The FEHA was enacted in 1980 (Stats. 1980, ch. 992, § 4,

p. 3140 et seq.), combining into one act the Fair Employment

Practices Act (FEPA) (Lab. Code, former § 1410 et seq.;

addressing employment discrimination) and the Rumford Fair

Housing Act (Health & Saf. Code, former § 35720 et seq.;

addressing housing discrimination). The FEHA’s definition of

employer came directly from the FEPA, and therefore its

wording dates back to the FEPA’s enactment in 1959. At that

time, the FEPA defined employer as follows: “ ‘Employer,’

except as herein provided, includes any person regularly

employing five or more persons, or any person acting as an agent

of an employer, directly or indirectly; the State or any political

or civil subdivision thereof and cities.” (Lab. Code, former

§ 1413, subd. (d), as enacted by Stats. 1959, ch. 121, § 1, p. 2000,

italics added.) As relevant to our inquiry concerning the liability

of an agent, the italicized part of the FEPA definition of

employer is identical to the FEHA’s present definition of

employer (§ 12926, subd. (d)), and it is, of course, the part of the

definition we must construe in this case.

Of significance to our analysis, the FEPA’s 1959 definition

of employer took its agent-inclusive language from the National

Labor Relations Act (NLRA) (29 U.S.C. § 151 et seq.), a federal

law that assures fair labor practices and workplace democracy.

At that time, and still today, the NLRA provided that “[t]he term

‘employer’ includes any person acting as an agent of an employer,

directly or indirectly.” (Labor Management Relations (Taft-

Hartley) Act of 1947, Pub.L. No. 80-101 (June 23, 1947) 61 Stat.

136, 137, codified at 29 U.S.C. § 152(2), italics added.) That the

FEPA adopted the NLRA’s agent-inclusive language informs

our analysis because, as amicus curiae Legal Aid at Work points

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out, the National Labor Relations Board (NLRB) had

interpreted the NLRA’s definition of employer to impose

employer status on certain employer agents. (See Hudson Pulp

& Paper Corp. (1958) 121 NLRB 1446, 1450–1451; Hugh J.

Baker & Co. (1955) 112 NLRB 828, 838; The Hearst Corp. (1952)

101 NLRB 643, 648, fn. 3; Western Ass’n of Engineers, Architects

and Surveyors (1952) 101 NLRB 64, 64; J.D. Jewell, Inc. (1952)

99 NLRB 61, 64, fn. 15; Southland Manufacturing Co. (1951) 94

NLRB 813, 829; Jackson Daily News (1950) 90 NLRB 565, 565;

Association of Motion Picture Producers, Inc. (1949) 85 NLRB

902, 903; see also p. 26, fn. 10, post.) The Legislature did not

make an express reference to these NLRB decisions when, in

1959, it adopted the NLRA’s agent-inclusive language into the

FEPA, but the decisions are consistent with the conclusion that

the Legislature intended the FEPA’s agent-inclusive language

to permit direct liability for the agents of an employer in

appropriate circumstances. (Cf. Yamaha Corp. of America v.

State Bd. of Equalization (1999) 73 Cal.App.4th 338, 353

[presumption that the Legislature is aware of long-standing

administrative interpretation of a law that the Legislature is

reenacting]; Coca-Cola Co. v. State Bd. of Equalization (1945) 25

Cal.2d 918, 922–923 [same].) In addition, there is a very strong

presumption that when, in 1980, our Legislature adopted that

language into the FEHA, the language retained the same

meaning. (See Robinson v. Fair Employment & Housing Com.

(1992) 2 Cal.4th 226, 235 [interpreting the FEHA consistently

with the way the FEPA had previously been interpreted];

Buchwald v. Katz (1972) 8 Cal.3d 493, 502 [“ ‘where legislation

is framed in the language of an earlier enactment on the same

or an analogous subject, which has been judicially construed,

there is a very strong presumption of intent to adopt the

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construction’ ”]; see also Union Oil Associates v. Johnson (1935)

2 Cal.2d 727, 734–735.)

Thus, the legislative history of the agent-inclusive

language of section 12926, subdivision (d) supports an

interpretation of that language as permitting direct FEHA

liability on the business-entity agents of an employer.7

3. Federal Antidiscrimination Laws

Also instructive regarding the definition of employer in

section 12926, subdivision (d) are various federal

antidiscrimination laws that define employer in similar terms.

Because these federal laws were enacted after our Legislature

enacted the definition of employer that now appears in section

12926, subdivision (d), they are not, strictly speaking, part of the

legislative history of the latter provision, but the parties rely on

them by way of analogy. We, like the parties, find these

decisions helpful in interpreting the reach of the statutory

language at issue. State courts, when interpreting state law,

commonly find federal court interpretations of federal laws that

use similar language to be persuasive authority. (See Williams

v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 109;

Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 984; Carter

v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914,

930, fn. 8; State Dept. of Health Services v. Superior Court (2003)

31 Cal.4th 1026, 1040; Johnson v. City of Loma Linda (2000) 24

7

By contrast, had the Legislature intended the agent-

inclusive language merely to incorporate respondeat superior

into the FEHA, it could have done so explicitly, as it has done in

other provisions. (See, e.g., Civ. Code, §§ 2334 [“A principal is

bound by acts of his agent . . . .”], 2338 [“a principal is

responsible to third persons for the negligence of his agent in the

transaction of the business of the agency”].)

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Cal.4th 61, 74; Romano v. Rockwell International, Inc. (1996) 14

Cal.4th 479, 498.) More specifically, “ ‘[i]n interpreting

California’s FEHA, California courts often look for guidance to

decisions construing federal antidiscrimination laws, including

title VII of the federal Civil Rights Act of 1964.’ ” (Williams v.

Chino Valley Independent Fire Dist., at p. 109, quoting Chavez

v. City of Los Angeles, at p. 984; see Lyle v. Warner Brothers

Television Productions (2006) 38 Cal.4th 264, 278; Miller v.

Department of Corrections (2005) 36 Cal.4th 446, 463; State

Dept. of Health Services v. Superior Court, at p. 1040; Aguilar v.

Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129–130

(plur. opn. of George, C. J.); id. at p. 150, fn. 3 (conc. opn. of

Werdegar, J.); Reno, supra, 18 Cal.4th at p. 647; Turner v.

Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1245–1246.)

Three federal antidiscrimination laws have definitions of

employer that are similar to the definition that appears in

section 12926, subdivision (d). Both title VII of the Civil Rights

Act of 1964 (Title VII) (42 U.S.C. § 2000e et seq.) and the

Americans with Disabilities Act of 1990 (ADA) (42 U.S.C.

§ 12101 et seq.) define “ ‘employer’ ” as “a person engaged in an

industry affecting commerce who has fifteen or more

employees . . . , and any agent of such a person.” (42 U.S.C.

§ 2000e(b); see 42 U.S.C. § 12111(5)(A).) Using nearly identical

language, with a minor difference in the minimum number of

employees required to come within the ambit of the statute, the

Age Discrimination in Employment Act of 1967 (ADEA) (29

U.S.C. § 621 et seq.) defines “ ‘employer’ ” as “a person engaged

in an industry affecting commerce who has twenty or more

employees” and “any agent of such a person.” (29 U.S.C.

§ 630(b).) Like the FEHA, these three federal laws define

employer in a way that includes an employer’s agents.

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Opinion of the Court by Jenkins, J.

Therefore, all three federal laws raise a similar issue to the one

now before us: Does the agent-inclusive language in these

definitions mean that plaintiffs may sue the agents of their

employers, subjecting the agents to the same liability that the

law imposes on the employers?

Federal circuit court decisions have arrived at different

conclusions on that question. Several courts have concluded

that the agent-inclusive language merely incorporates

respondeat superior liability into the relevant statutory scheme.

(See, e.g., Birkbeck v. Marvel Lighting Corp. (4th Cir. 1994) 30

F.3d 507, 510 [“we read [the agent language in the ADEA’s

definition of ‘employer’] as an unremarkable expression of

respondeat superior — that discriminatory personnel actions

taken by an employer’s agent may create liability for the

employer”]; Grant v. Lone Star Co. (5th Cir. 1994) 21 F.3d 649,

652 [“the purpose of the ‘agent’ provision in [42 U.S.C.]

§ 2000e(b) was to incorporate respondeat superior liability into

title VII”]; Miller v. Maxwell’s Intern. Inc. (9th Cir. 1993) 991

F.2d 583, 587 [“ ‘[t]he obvious purpose of [the agent language of

Title VII’s definition of employer] was to incorporate respondeat

superior liability into the statute’ ”].) Notably, however, these

decisions all involved the question whether the particular

federal law at issue imposed personal liability on the individual

employee agents of an employer; that is, they addressed the

question we decided in Reno, supra, 18 Cal.4th 640. Moreover,

these decisions embrace the point we made in Reno that

imposing personal liability on supervisorial employees would be

incongruous in light of the exemption these federal laws create

for small employers. (See Birkbeck v. Marvel Lighting Corp., at

p. 510; Grant v. Lone Star Co., at p. 652; Miller v. Maxwell’s

Intern. Inc., at p. 587.) As discussed above (see p. 9, ante), there

17

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Opinion of the Court by Jenkins, J.

is no such incongruity here. Therefore, these decisions are of

little assistance in resolving the precise question we confront

here — whether the agent-inclusive language of the relevant

definition of employer imposes liability on a third party

business-entity agent as opposed to an individual employee

agent.

Yet other federal decisions have addressed variants of the

issue we now confront and have interpreted the agent-inclusive

language to subject at least some business-entity agents to

direct liability. These courts have often relied on the high

court’s decision in Los Angeles Dept. of Water & Power v.

Manhart (1978) 435 U.S. 702 (Manhart), which involved a class

action challenging the Los Angeles Department of Water and

Power’s (Department) practice of demanding higher retirement

contributions from female employees than from male employees.

This practice was actuarially justified based on the longer life-

expectancy of women, but the high court concluded that it

violated Title VII. The court limited the scope of its decision,

however, saying: “Nothing in our holding implies that it would

be unlawful for an employer to set aside equal retirement

contributions for each employee and let each retiree purchase

the largest benefit which his or her accumulated contributions

could command in the open market.” (Manhart, at pp. 717–718.)

After noting that limitation, the high court commented in a

footnote: “We do not suggest, of course, that an employer can

avoid his responsibilities by delegating discriminatory programs

to corporate shells. Title VII applies to ‘any agent’ of a covered

employer . . . . In this case, for example, the Department could

not deny that the administrative board [that oversaw its pension

plan] was its agent after it successfully argued that the two were

so inseparable that both shared the city’s immunity from suit

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Opinion of the Court by Jenkins, J.

under 42 U.S.C. § 1983.” (Manhart, at p. 718, fn. 33, citation

omitted.) This footnote is hardly free from ambiguity. It could

be read to say that the employer would bear respondeat superior

liability for the discriminatory programs of the “corporate

shells” (ibid.) that acted as its agents, or it could be read to say

that the corporate shells would themselves bear employer

liability.

In Spirt v. Teachers Ins. & Annuity Ass’n. (2d Cir. 1982)

691 F.2d 1054 (Spirt), the Second Circuit Court of Appeals read

the Manhart footnote in the latter manner, although it did so in

a case involving an agent that was an independent business

entity, not a corporate shell of the employer. Spirt concluded

that an insurance corporation and investment fund that acted

as an agent to a university, providing retirement benefits to the

university’s employees, came within the agent-inclusive

language of Title VII’s definition of employer and therefore was

liable under Title VII to the university’s employees. The Second

Circuit said: “It is clear that plaintiff’s contract for retirement

benefits is not with [her employer], but with TIAA–CREF, an

independent insurer. Plaintiff clearly is not an employee of

TIAA–CREF in any commonly understood sense. However, it is

generally recognized that ‘the term “employer,” as it is used in

Title VII, is sufficiently broad to encompass any party who

significantly affects access of any individual to employment

opportunities, regardless of whether that party may technically

be described as an “employer” of an aggrieved individual as that

term has generally been defined at common law.’ ” (Spirt, at p.

1063, quoting Vanguard Justice Society, Inc. v. Hughes (D.Md.

1979) 471 F.Supp. 670, 696.) The Second Circuit then discussed

the high court’s comment in Manhart that “ ‘Title VII applies to

“any agent” of a covered employer,’ ” (Spirt, at p. 1063, quoting

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Opinion of the Court by Jenkins, J.

Manhart, supra, 435 U.S. at p. 718, fn. 33), and it noted that

many courts “have held Manhart applicable to pension plans

run by third-party insurers.” (Spirt, at p. 1063.) The Second

Circuit therefore concluded that TIAA–CREF, the pension plan

administrator for the plaintiff’s employer, was an “employer” of

the plaintiff for purposes of Title VII. (Spirt, at p. 1063.)

The First Circuit Court of Appeals, in Carparts Distri. Ctr.

v. Automotive Wholesaler’s (1st Cir. 1994) 37 F.3d 12 (Carparts),

extended the reasoning of Spirt, supra, 691 F.2d 1054 to an ADA

case. The plaintiffs in Carparts were a wholesale distributor of

automotive parts and its sole shareholder and president,

Ronald S. The defendants were the Automotive Wholesaler’s

Association of New England and its administering trust. Since

1977, the parts distributor had participated in a self-funded

medical reimbursement plan offered by the defendants. But in

1990, the defendants capped benefits for AIDS-related illnesses

at $25,000, knowing that Ronald S. was HIV positive. In

response to the cap, the plaintiffs sued the defendants, alleging

discrimination based on disability in violation of the ADA. The

federal district court dismissed the claims, holding that the ADA

did not apply because, among other things, neither defendant

was an “employer” of Ronald S. within the meaning of the ADA.

The First Circuit vacated the district court’s dismissal order and

remanded. (Carparts, at p. 21.) Because, as noted, the

definitions of employer in the ADA and Title VII are, for all

relevant purposes, the same, the First Circuit looked at how

courts had interpreted Title VII’s definition, focusing in

particular on Spirt, supra, 691 F.2d 1054. (See Carparts, at pp.

16–18.) The First Circuit conceded that defendants were not the

employers of Ronald S. in the ordinary sense of the term, but it

nonetheless concluded that there were three valid theories

20

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Opinion of the Court by Jenkins, J.

according to which the defendants might be liable to Ronald S.

under the ADA. (Carparts, at p. 16.) Two of those theories are

noteworthy here. “First, defendants would be ‘employers’ [of

Ronald S.] if they functioned as [his] ‘employer’ with respect to

his employee health care coverage, that is, if they exercised

control over an important aspect of his employment.” (Id. at p.

17.) “Second, even if the defendants did not have authority to

determine the level of [Ronald S.’s] benefits, and even if

Carparts retained the right to control the manner in which the

Plan administered these benefits, defendants would still be

rendered ‘employers’ of [Ronald S.] if defendants are ‘agents’ of

a ‘covered entity,’ who act on behalf of the entity in the matter of

providing and administering employee health benefits.” (Ibid.,

italics added.) Thus, the court construed the agent-inclusive

language of the ADA’s definition of employer as imposing direct

ADA liability on an employer’s agents under certain

circumstances. Having announced several theories by which the

defendants might be liable under the ADA, the court concluded

that further development of the record was necessary to

determine whether any of the theories applied. (Carparts, at p.

18.)8

8

The third theory the Carparts court discussed is

inapplicable here. The court explained that in some Title VII

cases the existence of an employee-employer relationship

between the plaintiff and the defendant has been held to be

unnecessary for purposes of imposing liability. In these cases,

entities that engaged in an industry affecting commerce and had

the requisite number of employees were held liable for their

discriminatory acts toward individuals who made no claim of

being employees of the offending entity. (See Sibley Memorial

Hospital v. Wilson (D.C. Cir. 1973) 488 F.2d 1338, 1341; see also

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Opinion of the Court by Jenkins, J.

The Eleventh Circuit Court of Appeals, in Williams v. City

of Montgomery (11th Cir. 1984) 742 F.2d 586 (Williams), applied

the agent-inclusive language of Title VII’s definition of employer

to a municipal entity, concluding, as the court did in Spirt,

supra, 691 F.2d 1054, that an institutional agent of an employer

can be directly liable under Title VII to the employer’s

employees. In Williams, the court upheld a determination that

the Montgomery City-County Personnel Board (the Board) had

discriminated against the plaintiff based on race when it

terminated his employment with the City of Montgomery. The

plaintiff was an employee of the city, not of the Board, but the

Board was the city’s agent and was responsible for the city’s

employment decisions, and therefore, the Eleventh Circuit

concluded, it came within Title VII’s definition of employer and

was directly liable. (Williams, at pp. 588–589.) After quoting

the agent-inclusive language of Title VII’s employer definition

(Williams, at p. 588), the court said: “ ‘Where the employer has

delegated control of some of the employer’s traditional rights,

such as hiring or firing, to a third party, the third party has been

found to be an “employer” by virtue of the agency relationship.’

[Citation.] . . . [¶] . . . [¶] The [provisions of Alabama law]

Association of Mexican-American Educators v. State of

California (9th Cir. 2000) 231 F.3d 572, 581; Christopher v.

Stouder Memorial Hospital (6th Cir. 1991) 936 F.2d 870, 875;

Pardazi v. Cullman Medical Center (11th Cir. 1988) 838 F.2d

1155, 1156; Doe on Behalf of Doe v. St. Joseph’s Hosp. (7th Cir.

1986) 788 F.2d 411, 422; Gomez v. Alexian Brothers Hosp. (9th

Cir. 1983) 698 F.2d 1019, 1021.) The Ninth Circuit’s question to

this court is not concerned with an employer’s potential liability

under the FEHA to nonemployees. Rather, it is expressly

concerned with “liab[ility] for employment discrimination.”

(Raines v. U.S. Healthworks Medical Group, supra, 28 F.4th at

p. 969, italics added.)

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illustrate the Board’s power to exercise duties traditionally

reserved to the employer: establishing a pay plan, formulating

minimum standards for jobs, evaluating employees, and

transferring, promoting, or demoting employees. These

functions are traditionally exercised by an employer, but the

Board utilizes these powers in the instant case; and, therefore,

the Board is an agent of the City for purposes of Title VII.”

(Williams, at p. 589, italics added.) On that basis, the Eleventh

Circuit affirmed the district court’s judgment holding the Board

liable for the plaintiff’s discriminatory termination. (Id. at p.

590.)

Finally, in DeVito v. Chicago Park Dist. (7th Cir. 1996) 83

F.3d 878 (DeVito), the Seventh Circuit Court of Appeals

extended the holding of Williams, supra, 742 F.2d 586 to an ADA

case. In DeVito, a park district employee alleged he was

terminated in violation of the ADA. At issue, among other

things, was whether the park district’s personnel board came

within the ADA’s definition of employer. In holding that it

might, the Seventh Circuit expressly relied on the definition’s

agent-inclusive language. The court, however, recognized an

exception for agents that were small entities with few

employees. The court said: “The plain language of the ADA

defines employer as ‘a person engaged’ in an industry affecting

commerce who has 25 or more employees[9] . . . and any agent of

such person.’ [Citation.] Because (as discussed previously) the

[personnel] Board is an agent of the Park District, it seems at

9

The minimum number of employees set forth in the ADA’s

employer definition dropped to 15 as of July 26, 1994, but the

25-employee minimum applied in DeVito. (See 42 U.S.C.

§ 12111(5)(A).)

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first glance that the Board should be subject to suit. But . . .

[a]gents are liable under the ADA only if they ‘otherwise meet

the statutory definition of [an] “employer.” ’ [Citation.] For

example, an agent of an employer is not liable under the ADA

unless it has the requisite number of employees and is engaged

in an industry affecting commerce.” (DeVito, at p. 882, fn.

omitted.) Having reached that conclusion, the Seventh Circuit

remanded the case for the district court to conduct the requisite

factfinding to determine whether the park district’s personnel

board qualified as the plaintiff’s “employer” for purposes of the

ADA.

These federal cases hold that under federal civil rights

law, aggrieved employees may sue, not only their employer, but

also the institutional agents of their employer if those agents

engage in an industry affecting commerce and are responsible

for the civil rights violation at issue. The latter condition, that

the agent be responsible for the violation, is analyzed in

different ways, but the federal courts have generally focused on

whether the agent exercised an administrative function

traditionally exercised by the employer. For example, in Spirt,

the court considered whether the agent exercised a gatekeeper

role that would normally be exercised by the employer and, by

serving in that role, violated the plaintiff’s rights. Specifically,

the court held that it was appropriate to impose direct liability

on an agent where, as was true in Spirt, the agent “ ‘significantly

affects access . . . to employment opportunities.’ ” (Spirt, supra,

691 F.2d at p. 1063.)

The court in Carparts, supra, 37 F.3d 12 reached a similar

conclusion, noting that the agents in that case affected access to

benefits in a similar way as the agent in Spirt. The court said:

“Just as ‘delegation of responsibility for employee benefits

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Opinion of the Court by Jenkins, J.

cannot insulate a discriminatory [retirement benefits] plan from

attack under Title VII,’ Spirt, 691 F.2d at 1063, neither can it

insulate a discriminatory health benefits plan under Title I of

the ADA.” (Carparts, supra, 37 F.3d at pp. 17–18.)

Similarly, in Williams, the court considered whether the

agent performed functions, typical of the employer, that might

give rise to a civil rights violation. The court noted that the

personnel board that was acting as the employer’s agent in

Williams exercised “ ‘control of some of the employer’s

traditional rights, such as hiring or firing.’ ” (Williams, supra,

742 F.2d at p. 589.) The court further noted the agent’s “power

to exercise duties traditionally reserved to the employer:

establishing a pay plan, formulating minimum standards for

jobs, evaluating employees, and transferring, promoting, or

demoting employees.” (Ibid.) Finally, the court commented that

“[t]hese functions are traditionally exercised by an employer,

but the [employer’s agent] utilizes these powers in the instant

case . . . .” (Ibid.) On that ground, the court held that the agent

bore direct liability for violating the plaintiff’s civil rights.

(Ibid.)

The holding of DeVito, supra, 83 F.3d 878, which likewise

involved a personnel board of a municipal employer, is to the

same effect. In reaching its holding, the court did not emphasize

the personnel board’s exercise of employer functions, but the

facts of the case make clear that the personnel board had

authority over the termination of the municipal employer’s

employees. (Id. at p. 879.)

These cases establish that an employer’s agent can, under

certain circumstances, appropriately bear direct liability under

the federal antidiscrimination laws. As noted on pages 15 to 16,

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ante, we have long held that “ ‘[i]n interpreting California’s

FEHA, California courts often look for guidance to decisions

construing federal antidiscrimination laws, including title VII of

the federal Civil Rights Act of 1964.’ ” (Williams v. Chino Valley

Independent Fire Dist., supra, 61 Cal.4th at p. 109.) The federal

court decisions in Spirt, supra, 691 F.2d 1054, Carparts, supra,

37 F.3d 12, Williams, supra, 742 F.2d 586, and DeVito, supra,

83 F.3d 878 support the conclusion that a business-entity agent

of an employer can fall within the FEHA’s definition of

employer, and it may be directly liable for FEHA violations, in

appropriate situations. Although the question presented in this

case does not require that we go further and attempt to identify

the specific scenarios in which a business-entity agent will be

subject to liability under the FEHA, we recognize as a necessary

minimum that, consistent with the FEHA’s language and

purpose, a business-entity agent can bear direct FEHA liability

only when it carries out FEHA-regulated activities on behalf of

an employer.10

10

This interpretation is supported by the NLRB decisions

cited on page 14, ante. In those decisions, the NLRB imposed

liability on business-entity agents only when the agent

performed some NLRA-regulated activity on behalf of the

employer and violated the NLRA in performing that activity.

(See, e.g., Hudson Pulp & Paper Corp., supra, 121 NLRB at pp.

1450–1451 [business entity designated to act as employer’s

agent with respect to “the hiring, discharging, and supervision

of its driver employees” liable as “employer” for NLRA violations

committed in that capacity]; Association of Motion Picture

Producers, Inc., supra, 85 NLRB at p. 903 [association that

“acted as agent of its members in negotiating labor contracts”

liable as “employer” for NLRA violations committed in that

capacity].)

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Opinion of the Court by Jenkins, J.

4. Public Policy

This reading of section 12926, subdivision (d) also finds

support in the public policy underlying the enactment of the

FEHA. If a business entity contracts with an employer to

provide services that will affect that employer’s employees, and

if, in providing those services, the business-entity agent violates

FEHA’s antidiscrimination policies, causing injury to the

employer’s employees, it is consistent with sound public policy

to treat the business entity as an employer of the injured

employees for purposes of applying the FEHA. This

interpretation imposes FEHA liability not only on the employer

but also extends it to the entity that is most directly responsible

for the FEHA violation. Moreover, when, as is often the case,

the business-entity agent has expertise in its field and has

contracted with multiple employers to provide its expert service,

this interpretation extends FEHA liability to the entity that is

in the best position to implement industry-wide policies that will

avoid FEHA violations.

In addition, reading the FEHA to authorize direct liability

on an employer’s business-entity agents furthers the statutory

mandate that the FEHA “be construed liberally” in furtherance

of its remedial purposes (§ 12993, subd. (a)), including the

purpose of “provid[ing] effective remedies that will both prevent

and deter unlawful employment practices and redress the

adverse effects of those practices on aggrieved persons”

(§ 12920.5). Moreover, the interpretation we advance today will

not impose liability on individuals who might face “ ‘financial

ruin for themselves and their families’ ” were they held directly

liable under the FEHA. (Reno, supra, 18 Cal.4th at p. 653.)

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Therefore, we conclude that legislative history, analogous

federal court decisions, and legislative policy considerations all

support the natural reading of section 12926, subdivision (d)

advanced here, which permits business-entity agents to be held

directly liable for FEHA violations in appropriate

circumstances.

C. Defendants’ Arguments

Defendants argue that a business-entity agent of an

employer should not be held directly liable under the FEHA

because, according to the law of agency, an agent acts under the

control of its principal, and therefore the principal is the entity

primarily responsible for any inadequate performance by the

agent. Defendants concede that an agent may, at times, be held

directly liable to a third party that it has injured, but defendants

contend that liability may be imposed only if the agent has

breached a duty it owes to that third party, and such duty must

exist independent of the agency relationship.

At the outset, it is important to note that defendants’

argument relies heavily on the common law of agency. Here,

however, we are interpreting the scope of statutory language

referencing agent liability, and so the common law of agency is

not determinative.11

In any event, defendants’ arguments assume a degree of

employer control of the agent that has not yet been shown here.

Plaintiffs allege that the degree of employer control over

USHW’s medical screening questionnaire varied from employer

11

Because the issue here is statutory, we need not address

the extent to which an agent may be held liable at common law

for its misfeasance in performing work done on behalf of its

principal. Accordingly, we express no view on the subject.

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Opinion of the Court by Jenkins, J.

to employer,12 and although the district court noted, in the

context of finding the complaint’s agency allegations sufficient,

that plaintiffs alleged employer control over USHW, the precise

extent of that control is unclear.13 More importantly, the basis

of the district court’s dismissal of the FEHA cause of action was

not that USHW lacked responsibility under the FEHA because,

as a factual matter, it acted without any independent control

over the content of the medical screening questionnaire. Rather,

the basis of the district court’s ruling was that the FEHA’s

definition of employer simply does not impose direct liability on

an agent regardless of how much control the agent has.

Accordingly, to answer the Ninth Circuit’s question of whether

a business-entity agent may ever be held directly liable under

the FEHA, we need not express a view on the significance, if

any, of employer control over the acts of the agent that gave rise

to the alleged FEHA violation.

Defendants also assert that an employer’s obligations

under the FEHA may not be delegated to an agent; it follows,

according to defendants, that an employer’s agent cannot be

held liable under the FEHA. It is true that an employer’s

obligations under the FEHA may not be delegated, thus freeing

12

The operative complaint asserts that the “[e]mployers

often required that USHW use the employers’ own physical

examination form, rather than USHW’s medical form, in

conducting the physical examination component of the pre-

placement exam.” (Italics added.)

13

The operative complaint alleges that the “employers . . .

delegated to Defendants employment decisionmaking

authority” and that based on that delegation of authority,

“Defendants . . . approved of, authorized and ratified the use of

the Health History Questionnaire(s) and Impermissible Non-

Job-Related Questions.”

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Opinion of the Court by Jenkins, J.

the employer of liability. However, the question we decide here

is not whether an employer may delegate its FEHA obligations

to its business-entity agents, but whether, under the language

of the FEHA, the business-entity agents of an employer can be

liable for violations of their own FEHA obligations. We have

concluded that, by statute, business-entity agents can be

considered “employers” for purposes of FEHA liability, and as

such, they are independently liable for violations of the FEHA.

Stated another way, a business-entity agent’s obligation to

comply with FEHA and its consequent liability for FEHA

violations results from the entity’s own engagement in FEHA-

regulated activities on the employer’s behalf. Thus, a rule

holding that the business-entity agents of an employer can be

held liable for FEHA violations neither delegates the employer’s

FEHA obligations nor abrogates the employer’s FEHA liability.

Nor will it lead to a double recovery for the plaintiff, as

defendants argue; rather, it merely increases the number of

defendants that might share liability for the plaintiff’s damages.

Last, as discussed (see pp. 9–10, ante), this is not a

situation like the one we considered in Reno, where imposing

FEHA liability on supervisorial employees might lead to a

conflict between the supervisorial employee’s duty to implement

their employer’s policies and the supervisorial employee’s self-

interest in avoiding FEHA liability. At least in a case like this

one, involving a business-entity agent that is alleged to be a

large enterprise with more than five employees, the agent and

the employer are more likely to have comparable bargaining

power, and the agent can use that bargaining power to avoid

contractual obligations that will force it to violate the FEHA.

That fact makes the situation of a large business-entity agent

fundamentally unlike that of an employee agent.

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Opinion of the Court by Jenkins, J.

For these reasons, we reject defendants’ arguments.

Simply put, we are not persuaded by defendants’ arguments

that business-entity agents with at least five employees are

categorically exempt from liability for FEHA violations under

section 12926, subdivision (d).

III. CONCLUSION

We answer the Ninth Circuit’s question as follows: The

California Fair Employment and Housing Act, which defines

“employer” to “include[]” “any person acting as an agent of an

employer” (§ 12926, subd. (d)), permits a business entity acting

as an agent of an employer to be held directly liable as an

employer for employment discrimination in violation of the

FEHA in appropriate circumstances when the business-entity

agent has at least five employees and carries out FEHA-

regulated activities on behalf of an employer. We do not decide

the significance, if any, of employer control over the act(s) of the

agent that gave rise to the FEHA violation, and we also do not

decide whether our conclusion extends to business-entity agents

that have fewer than five employees. We base our conclusion on

our interpretation of the FEHA’s definition of employer(§ 12926,

subd. (d)); we express no view of the scope of a business entity

agent’s possible liability under the FEHA’s aider and abettor

provision (§ 12940, subd. (i)).

JENKINS, J.

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

GROBAN, J.

EVANS, J.

31

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion Raines v. U.S. Healthworks Medical Group

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding XX on request by 9th Circuit (Cal. Rules of

Court, rule 8.548)

Review Granted (published)

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S273630

Date Filed: August 21, 2023

__________________________________________________________

Court:

County:

Judge:

__________________________________________________________

Counsel:

Phillips, Erlewine, Given & Carlin, R. Scott Erlewine, Brian S. Conlon

and Kyle P. O’Malley for Plaintiffs and Appellants.

Rob Bonta, Attorney General, Matthew Rodriquez, Chief Assistant

Attorney General, Michael L. Newman, Assistant Attorney General,

Srividya Panchalam, Francisco V. Balderrama and Christopher Paul

Kailani Medeiros, Deputy Attorneys General, for the Attorney General

of California as Amicus Curiae on behalf of Plaintiffs and Appellants.

Alexis Alvarez; and Sachin S. Pandya for AIDS Legal Referral Panel,

Bet Tzedek, California Employment Lawyers Association, Civil Rights

Education and Enforcement Center, Disability Rights Advocates,

Disability Rights California, Disability Rights Education and Defense

Fund, Disability Rights Legal Center, Impact Fund and Legal Aid at

Work as Amici Curiae on behalf of Plaintiffs and Appellants.

Reed Smith, Raymond A. Cardozo, Kathryn M. Bayes; Ogletree,

Deakins, Nash, Smoak & Stewart, Tim L. Johnson and Cameron O.

Flynn for Defendants and Respondents.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

R. Scott Erlewine

Phillips, Erlewine, Given & Carlin LLP

39 Mesa Street, Suite 201

San Francisco, CA 94129

(415) 398-0900

Raymond A. Cardozo

Reed Smith LLP

101 Second Street, Suite 1800

San Francisco, CA 94105

(415) 659-5990