Reno v. Baird

¶1I concur in the judgment. I write separately to make two points.

¶2First, the majority state: “[W]e express no opinion on the scope of employer liability under the FEHA [Fair Housing and Employment Act ] for either discrimination or harassment. We specifically express no opinion on whether the ‘agent’ language [in Government Code section 12926, subdivision (d)1] merely incorporates respondeat superior principles or has some other meaning.” (Maj. opn., ante, at p. 658.) Yet at least one thing is implicit in the majority opinion with respect to employer liability. As the majority explain, quoting Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63 [53 Cal.Rptr.2d 741], the difference between harassment and discrimination is that harassment is “ ‘not necessary to a supervisor’s job performance,’ ” whereas discrimination always involves “ ‘business or personnel management decisions . . . inherently necessary to performance of a supervisor’s job.’ ” (Maj. opn., ante, at p. 645.) Thus, a necessary implication of the majority holding is that an employer may not avoid liability for discrimination under the Fair Employment and Housing Act (FEHA) by claiming that the discrimination was a result not of its policy but of a rogue supervisor’s own prejudices, and therefore somehow not within the scope of employment; a supervisor making such decisions is per se acting within the *665scope of his or her employment. (Cf. Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 301 [48 Cal.Rptr.2d 510, 907 P.2d 358].) In other words, the other side of the majority’s holding that the supervisor is never liable for illegally discriminatory decisions actionable under the FEHA, because he or she is performing “ ‘necessary personnel management duties’ ” (maj. opn., ante, at p. 646), is that the supervisor’s employer is always liable. This principle is consistent with the “apparently unanimous rule” the United States Supreme Court has recently recognized with respect to title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), that “claims against employers for discriminatory employment actions with tangible results, like hiring, firing, promotion, compensation, and work assignments], have resulted in employer liability once the discrimination was shown.” (Faragher v. City of Boca Raton (1998) U.S___ _ [118 S.Ct. 2275, 2284, 141 L.Ed.2d 662] {Faragher).)

¶3Second, today’s ruling applies to discrimination rather than harassment, that is, to discriminatory “employment actions with tangible results” rather than “discrimination by hostile environment.” {Faragher, supra,_U.S. at p.__[118 S.Ct. at p. 2284].) Thus, the majority’s rule does not foreclose the possibility that in some instances of discriminatory harassment, both an employer and a supervisor or other employee individually will be held liable under the FEHA—the latter for creating the hostile environment (see § 12940, subd. (h)(1)), the former according to agency principles (see Faragher, supra,_U.S. at p. ___ [118 S.Ct. at pp. 2286-2287); § 12940, subd. (i)).

¶4Moreover, the majority state that harassment claims and discrimination claims are based on different types of conduct. (Maj. opn., ante, at p. 657.) Nonetheless, in the case of constructive discharge, these two types of conduct may converge when the discriminatory constructive discharge claim is based on an atmosphere of pervasive harassment. (See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 614 [262 Cal.Rptr. 842].) Nothing in the majority opinion precludes liability for both the employer and the supervisor in such circumstances.