(JNOV). In the new trial motion, the City contended the damages award was
unsupported by the evidence. In the JNOV motion, the City argued Hirst was not entitled
to recover under the FEHA because she was not a City employee, special employee, or a
"person providing services pursuant to a contract" under Government Code section
12940, subdivision (j)(1).1
The court denied the JNOV motion, but granted the new trial motion finding the
damage award was excessive. The court ordered a new trial on both liability and
damages because "the issues are so interrelated that damages cannot be separated from
the facts underlying liability."
Hirst did not appeal from the new trial order, but the City appealed from the denial
of its JNOV motion, contending Hirst had no standing to recover damages on her FEHA
claim against the City. We determine the evidence supports that Hirst was a "person
providing services pursuant to a contract" and therefore she was entitled to recover
against the City for its employee's sexual harassment. (§ 12940, subd. (j)(1).) Based on
1 Statutory references are to the Government Code unless otherwise specified.
2
this conclusion, we do not reach the additional asserted ground for standing (whether
Hirst was a "special employee" of the City). We affirm the court order denying the
JNOV motion and remand for further proceedings under the court's new trial order.
FACTUAL AND PROCEDURAL BACKGROUND
Under the applicable review standard, we summarize the evidence in the light
most favorable to Hirst. (See Begnal v. Canfield & Assocs., Inc. (2000) 78 Cal.App.4th
66, 72.) In the Discussion section, we describe additional evidence regarding the
business and employment relationships among the City, AFN, and Hirst.
AFN provides phlebotomy services for law enforcement agencies that need blood
samples drawn from suspects for intoxication testing and other purposes. In 2004, AFN
entered into a contract with San Diego County (County), requiring AFN to supply
personnel to perform blood draws "on an on-call basis" at locations throughout the
County, including the Oceanside Police Department.
In August 2008, AFN hired Hirst, a certified and trained phlebotomist, to work on
an on-call basis in the North County area. About one month later, while Hirst was
performing these blood drawing services for the Oceanside Police Department,
Oceanside police officer Garcia began making graphic sexual comments to her, and then
repeated these comments during the next several months. These comments included
Garcia telling Hirst " 'I'd like to bend you over and fuck you in the ass' " and " 'I want to
watch you . . . give me a blow job' " and " 'you have a nice ass.' " Hirst did not
immediately report these comments because—as a new employee—she was concerned
about her job and was afraid of police officer retaliation.
3
In about May 2009, Hirst's AFN supervisor, Terry Johnston, questioned Hirst
about Garcia, stating that Garcia has been "saying really nasty things about you" of a
sexual nature. At that point, Hirst broke down and disclosed Officer Garcia's harassment.
Johnston responded that he would need to report the conduct, but Hirst was "adamant"
she did not want to report because she was afraid of retaliation. She "just wanted it to go
away." Johnston continued discussing the issue with Hirst, insisting he would need to
report the conduct. At one point, a contract reserve officer overheard these
conversations, and volunteered to report the conduct to an Oceanside police sergeant.
Shortly after, the reserve officer reported the conduct. In response, Garcia's
supervisor ordered him to stay away from Hirst, and began an investigation. Upon
learning of the harassment, AFN's president and chief executive officer communicated
with the Oceanside Police Department in an effort to ensure Garcia would be
appropriately controlled and disciplined. The AFN president also counseled Hirst
regarding safety measures.
During the next several months, Garcia engaged in several additional acts of
harassment and/or retaliation against Hirst, including driving by and staring at her in a
menacing way, kicking open a security gate in a dark area of the police station while
letting Hirst into the station, making an intimidating comment about Hirst while she was
at the station for a blood draw, and driving by her vehicle and mouthing the words " 'fuck
you.' "
In September 2009, a City human resources manager prepared a report concluding
that Officer Garcia had sexually harassed Hirst and setting forth numerous factual
4
findings supporting this conclusion. The report stated that Officer Garcia's sexual
harassment of Hirst was "inexcusable in the workplace . . . . Hirst made it clear that she
was offended by [his] statements and that Officer Garcia's continued conduct
unreasonably interfered with her work environment and caused her to feel intimidated
and offended." The manager concluded: "There is sufficient evidence to substantiate a
finding that Officer [Garcia] engaged in sexually derogatory and suggestive statements
and graphic verbal commentary and Hostile Work Environment Sexual Harassment under
the standards established by the [City's internal harassment and discrimination prevention
policy]. The substantiated evidence in this investigation also indicates a high likelihood
that Officer Garcia's actions meet the elements necessary to establish a prima facie case
of Hostile Work Environment Sexual Harassment under the California Fair Employment
and Housing Act (FEHA)."
Based on this report, the Oceanside Police Department put Garcia on
administrative leave. The police chief recommended termination, and this decision was
affirmed by the city manager. Garcia's termination became final after he unsuccessfully
challenged the termination at an arbitration hearing.
About one year later, Hirst sued the City.2 She initially alleged seven causes of
action, but only her FEHA sexual harassment claim remained by the time of trial. Hirst's
theory was that Garcia sexually harassed her and that the City was liable either because
2 Hirst also sued Garcia, but dismissed him during trial. 5
Garcia was her supervisor or because the City knew or should have known about the
harassment and failed to take immediate corrective action. (§ 12940, subd. (j).)
At trial, Hirst presented the evidence summarized above regarding the harassment,
and also presented evidence regarding the City's failure to promptly prevent the
continuing harassment and her emotional distress resulting from Garcia's conduct. She
additionally presented an expert, a human resources consultant, who testified that once
the City learned of the harassment, it failed to take reasonable and timely steps to prevent
continued harassment and retaliation against Hirst. The expert also opined that Hirst had
standing under the FEHA to bring the sexual harassment action against the City.
In defense, the City agreed that Garcia had committed most of the alleged
improper conduct but argued it was not liable under the FEHA because (1) Hirst lacked
standing to recover as she was not a City employee or a "person providing services
pursuant to a contract"; (2) Garcia's conduct was not severe and pervasive; (3) Garcia was
not Hirst's supervisor as would be necessary to make the City strictly liable; and (4) the
City responded timely and appropriately once it learned of the allegations. The City's
expert, an employment attorney, opined that the City fulfilled its FEHA obligations to
address and prevent the harassment and Hirst had no standing under the FEHA because
she was not an employee, special employee, or an independent contractor.
At the conclusion of the evidence and arguments, the court gave the jury a special
verdict form containing numerous questions. The first question asked: "Was Kimberli
Hirst an employee of the City of Oceanside, a special employee of the City of Oceanside,
or a person providing services under a contract?" (Italics added.) The jury answered
6
"Yes" to this question. The jury was also asked whether "Officer Gilbert Garcia, as
Kimberli Hirst's supervisor, engage[d] in harassing conduct or did City of Oceanside
know or should have known of the conduct and failed to take immediate and appropriate
corrective action?" (Italics added.) The jury also answered "Yes" to this question.
In responding to the remaining questions on the verdict form, the jury found:
Hirst was subjected to unwanted harassing conduct because she was a woman; the
harassment was severe or pervasive; a reasonable woman would have considered the
work environment to be hostile or abusive; Hirst considered the work environment to be
hostile or abusive; and the harassing conduct was a substantial factor in causing harm to
Hirst. The jury found Hirst's "[p]ast loss" was $750,000 and her "[f]uture loss" was
$750,000. The jury found AFN was "at fault" for the harm, but this fault was not a
substantial factor in causing Hirst's harm. The jury attributed 25 percent fault to Officer
Garcia for causing the harm. The jury found Hirst was not at fault for the harm.
The court entered judgment against the City on this verdict for $1.125 million.
The City then moved for a new trial on grounds of excessive damages and moved for a
JNOV on the grounds that "plaintiff has no standing under the [FEHA], and as a matter of
law, no other reasonable conclusion is legally deducible from the evidence."
The court denied the JNOV motion, but granted the City's new trial motion, stating
it was convinced after "hearing, reviewing and weighing all of the evidence" that the
damages awarded were "clearly exorbitant." The court found a majority of the claimed
damages were not legally compensable because they were for " 'litigation stress' "; Hirst's
testimony regarding her emotional distress was "not credible"; the only medical expert in
7
the case testified that Hirst did not need any medication or future treatment; and Hirst's
counsel had improperly urged the jury to award damages that would send the City a
message, even though punitive damages cannot be awarded against a public entity. The
court found a new trial on liability and damages was necessary because the issues were
intertwined.
The City appealed from the order denying its JNOV motion, but Hirst did not
appeal from the new trial order.3
DISCUSSION
The City contends the court erred in denying its JNOV motion because Hirst had
no standing to recover on her FEHA harassment claim. In resolving this contention we
initially describe the standards governing JNOV motions and legal standing under the
FEHA. We next summarize the evidence relevant to the standing issue. We then explain
our conclusion that Hirst had standing to recover against the City for Garcia's harassment
because she was a "person providing services pursuant to a contract" under section
12940, subdivision (j)(1).
I. JNOV Review Standards
On appeal from the denial of a JNOV motion, an appellate court must review the
record de novo and make an independent determination whether there is any substantial
evidence to support the jury's findings. (Pacific Corporate Group Holdings, LLC v. Keck
(2014) 232 Cal.App.4th 294, 309; Trujillo v. North County Transit Dist. (1998) 63
3 An order denying a JNOV motion is appealable even if the trial court granted a new trial motion. (See Saxena v. Goffney (2008) 159 Cal.App.4th 316, 323-324.) 8
Cal.App.4th 280, 284 (Trujillo).) This review is limited to determining whether there is
any substantial evidence to support the jury's verdict. (Begnal v. Canfield & Assocs.,
Inc., supra, 78 Cal.App.4th at p. 72.) The court must accept as true the evidence
supporting the verdict, disregard conflicting evidence, and indulge every legitimate
inference to support the verdict. (Ibid.) If sufficient evidence supports the verdict, a
reviewing court must uphold the court's denial of the JNOV motion. (Ibid.) If the
appellant raises purely legal questions, we conduct a de novo review. (Wolf v. Walt
Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1138; Trujillo, supra, 63
Cal.App.4th at p. 284.)
The issue presented requires us to interpret section 12940, subdivision (j) and its
subparts. In so doing, " '[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. We do not examine that language in
isolation, but in the context of the statutory framework as a whole in order to determine
its scope and purpose and to harmonize the various parts of the enactment. 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, sentence,
9
and part of an act in pursuance of the legislative purpose.' [Citation.]" (Sierra Club v.
Superior Court (2013) 57 Cal.4th 157, 165-166.)
II. Standing To Recover for Sexual Harassment Under FEHA
The FEHA establishes a comprehensive scheme intended to protect and safeguard
the right and opportunity of all persons to seek and hold employment free from prohibited
discrimination and harassment. (§ 12920.) Although the FEHA generally protects only
"employees" and "applicants," the provisions prohibiting harassment contained in section
12940, subdivision (j) are intentionally broader. At the relevant times, section 12940,
subdivision (j) provided that an employer may be held liable for its employee's
harassment of an "employee, an applicant, or a person providing services pursuant to a
The courts have interpreted the term "employee" used in this code section to
include a "special 'employee,' " which is a worker employed by one entity who is also
considered an employee of a second entity if that borrowing entity exercises certain
power of control over the employee. (Bradley v. Department of Corrections &
Rehabilitation (2008) 158 Cal.App.4th 1612, 1626-1627; see State ex rel. Dept. of
California Highway Patrol v. Superior Court (2015) 60 Cal.4th 1002, 1008, fn. 2, 1012-
1015 (Alvarado); Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 492-493.) In
determining this special employment status, the main factor is the second entity's right to
4 In 2014, the Legislature added two additional categories of individuals protected from harassment: "an unpaid intern" and "volunteer." (Stats. 2014, ch. 302.) Unless otherwise stated, all references to section 12940, subdivision (j) are to the former statutory version applicable before the 2014 amendments became effective. 10
control job performance. (Alvarado, supra, 60 Cal.4th at p. 1012.) Other relevant factors
include whether the individual was paid by and could be discharged by the second
employer, was a skilled worker with substantial control over operational details, was
engaged in the second employer's usual business, and used the second employer's tools
and equipment. (Id. at p. 1014.) The administrative regulations define one type of
employee that comes within this special employment status: individuals compensated by
a temporary employment agency who are assigned to work for a contracted employer.
(Cal. Code Regs., tit. 2, § 11008, subd. (b)(5); see Mathieu v. Norrell Corp. (2004) 115
Cal.App.4th 1174, 1182-1184.)
The second relevant category—"a person providing services pursuant to a
contract"—is specifically defined in section 12940, subdivision (j)(5):
"For purposes of this subdivision, 'a person providing services pursuant to a contract' means a person who meets all of the following criteria:
(A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance.
(B) The person is customarily engaged in an independently established business.
(C) The person 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."
A "person" is defined to include "one or more individuals, partnerships, associations,
corporations, limited liability companies, legal representatives, trustees, trustees in
bankruptcy, and receivers or other fiduciaries." (§ 12925, subd. (d).)
11
An employer may also be liable for the sexual harassment committed by
"nonemployees" on "employees, applicants, or persons providing services pursuant to a
contract in the workplace" if "the employer, or its agents or supervisors, knows or should
have known of the conduct and fails to take immediate and appropriate corrective
the acts of nonemployees, the extent of the employer's control and any other legal
responsibility that the employer may have with respect to the conduct of those
nonemployees shall be considered." (Ibid.)
III. Relevant Facts Regarding Hirst's Employment Status
Under the contract between AFN and the County, AFN agreed to provide on-call
employees to perform phlebotomy services at law enforcement and health care locations
throughout the County. The contract required the employees to comply with state
administrative regulations applicable to blood draws and be certified to perform the blood
draws. The contract further required the phlebotomy services to be performed under the
direct supervision of a sworn law enforcement officer or a crime lab forensic staff
member. Under the contract, AFN's employees were required to provide all necessary
materials to perform the blood draws.
The contract specifically stated that AFN is an "independent [c]ontractor," and
"neither [AFN] nor [AFN's] employees . . . shall be deemed to be employees of the
County." The contract required AFN to obtain all employees required to perform its
obligations under the agreement, and stated the employees shall "be at [AFN's] sole cost
and expense . . . ." The contract further stated that AFN "shall perform its obligations
12
according to [its] own means and methods of work . . . which shall not be subject to
control or supervision by County except as to the results of the work." The contract also
provided that neither AFN nor any of its employees "shall be entitled to any benefits to
which County employees are entitled, including without limitation, overtime, retirement
benefits, workers' compensation benefits and injury leave."
The evidence at trial showed the contract implementation was consistent with
these provisions. AFN had approximately 80 on-call certified employees in the San
Diego area. AFN trained its employees, and they were supervised by an AFN supervisor
and manager. AFN had the authority to hire and fire the employees, and the County had
no authority over these matters. Each month, an AFN supervisor prepared a schedule
determining which AFN phlebotomist would be assigned to which shifts for which
agencies. When a law enforcement officer needed a blood draw, the officer would
contact his law enforcement agency's dispatch, which would contact AFN's dispatch,
which would contact the AFN phlebotomist on call. The AFN phlebotomist would then
travel to the site where the blood draw was needed. The phlebotomist would be paid by
AFN according to the number of blood draws completed each month.
AFN phlebotomists were not permitted to enter secure law enforcement facilities
without an escort. A law enforcement officer would meet the AFN phlebotomist at the
security gate and take the phlebotomist to the room where the blood draws were
performed. The officer would tell the AFN phlebotomist whether the test was still
needed, and whether it was voluntary or forcible (i.e., whether the suspect was
cooperative). The AFN phlebotomist then drew blood as he or she saw fit according to
13
the worker's applicable medical training, with the officer observing the procedure. At all
times, the officer would provide supervision and maintain security of both the suspect
and the phlebotomist.
Once the blood draw was complete, the AFN phlebotomist and the officer who
witnessed the draw would sign a form confirming that the draw had occurred. This form
was necessary for the phlebotomist and AFN to receive compensation for the work
performed. The officer would then escort the AFN phlebotomist out of the facility. A
typical AFN phlebotomist's site visit took about 15 minutes from start to finish.
In her testimony, Hirst confirmed these procedures applied to her work at the
Oceanside police station. Hirst brought the equipment and relied on her own expertise
when performing blood draws. But a law enforcement officer was always present when
she was drawing blood. She was escorted into the station by a police officer, who would
unlock an outside gate to allow her to enter the facilities. The officer had complete
responsibility over the suspect and the environment under which the blood draw was
administered, and Hirst had authority over the blood draw once the suspect was in a
position that allowed a safe blood draw. The procedure would take about five to 30
minutes depending on the cooperation of the suspect.
IV. Analysis
At trial, Hirst contended she was entitled to recover against the City for unlawful
sexual harassment because she was either a "special employee" or a "person providing
services pursuant to a contract" under section 12940, subdivision (j)(1). Although both
parties presented expert evidence on these issues, our legal analysis is primarily a matter
14
of statutory interpretation. The jury answered "Yes" to the special verdict question
whether Hirst was "an employee of the City of Oceanside, a special employee of the City
of Oceanside, or a person providing services under a contract." (Italics added.) Thus, for
purposes of reviewing the court's denial of the JNOV motion on the standing issue, we
must uphold the court's order if the evidence supported any one of these statutory
categories.
As explained below, we conclude Hirst fell within the "person providing services
pursuant to a contract" category, and therefore need not reach the special employee
question. (§ 12940, subd. (j).) The record shows Hirst was providing services to the City
"pursuant to a contract" during the time she was sexually harassed by a City employee.
AFN and the County entered into a contract requiring AFN to provide employees for on-
call phlebotomist services to law enforcement agencies throughout the County. AFN
hired Hirst to fulfill the obligations of this contract, and Hirst's blood drawing services for
the Oceanside Police Department were specifically performed pursuant to the terms of
the contract. The jury found Garcia sexually harassed Hirst when she was performing
these contractual services.
The City argues Hirst did not satisfy the "providing services pursuant to a
contract" category because this phrase has been specifically defined in the statutes, and
she does not fit each of the elements of this definition. As stated above, section 12940,
subdivision (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
15
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." (§ 12940, subd.
(j)(5)(A)-(C).)
The facts showed Hirst satisfied this statutory definition. When she was
dispatched to the Oceanside Police Department, Hirst exercised her own professional
judgment in implementing the blood drawing services. Although the police department
closely monitored this work, this was purely a function of its law enforcement obligation
to control the suspect, ensure Hirst's safety, and preserve the validity of the blood
evidence. (See Alvarado, supra, 60 Cal.4th at pp. 1012-1013.) There is no evidence the
Oceanside Police Department had employment authority over Hirst, other than to secure
the environment in which this work was performed. This type of supervision does not
create an employment relationship or negate a worker's independent contractor status.
(See ibid.) Further, Hirst was customarily engaged in the phlebotomist business, and this
business was not a usual part of the City's public duties. Hirst also brought equipment to
perform these services and did not use the City's property or rely on its expertise, and the
evidence showed the blood drawing work was not a skill ordinarily possessed by the
City's law enforcement personnel.
At trial, the focus of Hirst's argument was not that she was personally described by
these provisions; she instead argued she was entitled to trigger FEHA protection because
AFN came within the statutory definition. The City does not dispute that AFN was a
"person providing services pursuant to a contract" under the section 12940, subdivision
16
(j)(5) definition. But the City argues AFN's status cannot be attributed to Hirst because
she is not the "person" who contracted for the work and instead was merely the employee
of the independent contractor.
This view is unsupported. AFN is a corporation that must act through its agents.
(See Black v. Bank of America (1994) 30 Cal.App.4th 1, 6.) As a business entity, AFN
does not personally provide the phlebotomist contractor services; its services are
performed by individuals (including Hirst) acting on AFN's behalf. It would be
unreasonable to conclude the Legislature would have intended that AFN had standing but
those who actually performed the services "pursuant to a contract" were barred from
recovery.
The specific language of the statute supports this conclusion. Section 12940,
subdivision (j)(1) provides an employer may be liable when an employee harasses a
"person providing services pursuant to a contract." (Italics added.) This provision does
not require the protected person to be the contracting party. Likewise, subdivision
(j)(5)(B) provides that the person must be "customarily engaged in an independently
established business." (Italics added.) This provision does not state that the person must
own or operate the "independently established business." Engaged means to be "involved
in [the] activity," not run the operation. (See Merriam-Webster's Collegiate Dict. (10th
ed. 2002) p. 383.)
The City contends that if the Legislature had intended an employer would be liable
to "each service provider's employees," it would have defined the expanded category "to
include independent contractors and their employees." But the Legislature did not define
17
this category as "independent contractors." Rather, it used the phrase "person providing
services pursuant to a contract," and defined this phrase to include persons functioning as
an independent contractor at the employer's business. (§ 12940, subd. (j)(1), (5).) This
description supports that an employee of an independent contractor has standing to bring
an action for sexual harassment under the FEHA.
Our determination is also supported by the statute's legislative history. Before
2000, only an "applicant" or "employee" had standing to bring a harassment claim under
the FEHA. In 1999, the Legislature amended section 12940, subdivision (j) to include
"person[s] providing services pursuant to a contract." (See Stats. 1999, ch. 591, § 8.)
The express purpose was to "expand[ ] the reach of the state's harassment (but not
discrimination) protections by including contract workers within FEHA's coverage."
(Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1670 (1999-2000 Reg. Sess.) as
amended May 6, 1999, p. 8, italics added.) A legislative committee analysis noted that
prior regulatory definitions and judicial decisions had excluded independent contractors
from harassment-protection coverage, and the new language would "extend FEHA's
harassment protections to independent contractors." (Assem. Com. on Judiciary,
Analysis of Assem. Bill No. 1670 (1999-2000 Reg. Sess.) as amended May 6, 1999, p.
8.) The committee analysis explained: "[T]here already is important precedent in
California law for protecting independent contractors from harassment," citing Civil
Code section 51.9, and "consistent" with this code section, the bill would "add individuals
in California who are 'under the control of a principal regarding only the result of [their]
work, and not regarding the means by which [their work] is accomplished.' This change
18
is intended to provide needed protections for the ever-growing numbers of workers who
are hired as independent contractors rather than employees, and who currently work
unprotected against harassment simply by virtue of the contractual nature of their work
and their lesser cost to the businesses who hire them." (Assem. Com. on Judiciary,
Analysis of Assem. Bill No. 1670, supra, p. 9.)
Another legislative bill analysis stated:
"The bill's supporters acknowledge that sexual harassment laws were originally premised on the idea that a woman could not get away from a harasser's advances without losing her job, or suffering some other adverse employment action. Independent contractors were excluded from the employment protection statutes, as it was considered that they could get away, not being bound as an employee to the bad situation. However, the dynamics of employment have changed in recent years, they say. Today employers have substantially increased the use of contract workers as a cost savings measure. . . . Situations where a contract employee could be subjected to harassment without recourse include a self- employed specialist such as a graphic designer, who works 'in-house' on a company's newsletter; or a long-term 'independent contractor,' who performs as a traditional employee, but is never made a true employee—thereby saving the employer from paying taxes and benefits." (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1670 (1999-2000 Reg. Sess.) as amended June 1, 1999, pp. 6-7.)
These descriptions of the bill's purpose support a conclusion that Hirst had
standing to recover against the City under the facts presented at trial. Hirst was a skilled
worker whose work was in the nature of an independent contractor, i.e., the City did not
control the means by which the work was accomplished (other than to provide law
enforcement supervision), and the City was concerned primarily with the results of the
work. In performing the phlebotomist services, Hirst was required to work in the
presence of City employees, and was frequently required to be in a locked booking room
19
with a City police officer to perform the phlebotomist services. The fact that a worker in
Hirst's position previously could not recover for a City employee harassment whereas a
City employee working alongside her could do so was a motivating reason for the
Legislature's decision to expand harassment protections to nonemployee contract
workers.
The City argues the examples set forth in the bill analysis (individual contractors
who own their own businesses) reflect that the Legislature was concerned solely about
individuals who had no other remedy for employee sexual harassment. The City
maintains that this concern "does not apply to Hirst" because "[s]he had a traditional
employer," and thus had recourse for sexual harassment by bringing an action against
AFN. The City relies on the portion of section 12940, subdivision (j)(1) that provides an
employer may be held liable for a nonemployee's harassing acts if the employer had the
requisite knowledge and failed to take appropriate corrective action. Under this
provision, the City argues Hirst had a potential action against her "traditional" employer
(AFN) for Officer Garcia's harassment, and therefore the Legislature did not intend
someone in her position to be a covered party under the FEHA.
This argument is unpersuasive. The Legislature specifically provided that
recovery against an employer for a nonemployee'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 nonemployees . . . ." (§ 12940, subd. (j)(1).) This means
the potential scope of an employer's liability over nonemployee harassment is more
limited than an employer's liability for its own employees' conduct. For example, in the
20
situation here where the evidence showed the contract worker's employer (AFN) had
little or no bargaining power over a public entity such as the Oceanside Police
Department and little or no process for influencing or addressing the behavior of the
offending police officer, this alternative avenue for redress was not a substitute for
obtaining meaningful relief. As the harasser's employer, the City had more effective and
immediate means to prevent and/or correct the harassment. There is nothing in the
statutory language or the legislative history suggesting the Legislature intended that a
contract worker is 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. The courts
have long recognized that a dual employer relationship may exist and that the existence
of a second employer does not necessarily preclude statutory protection from both
employers. (Marsh, supra, 26 Cal.3d at pp. 492-493; see Kowalski v. Shell Oil Co.
(1979) 23 Cal.3d 168, 174; Mathieu v. Norrell Corp., supra, 115 Cal.App.4th at pp.
1182-1184.) We necessarily presume the Legislature enacted the contract worker
amendment with this principle in mind. (See Busse v. United PanAm Financial Corp.
(2014) 222 Cal.App.4th 1028, 1038.)
We are also unpersuaded by the City's arguments that upholding the jury's finding
that Hirst is a "person providing services pursuant to a contract" under section 12940,
subdivisions (j)(1) and (j)(5) will lead to an unwarranted expansion of FEHA. This
contract worker category applies only to harassment claims by a worker performing work
pursuant to a contract with the harasser's employer, and requires that the plaintiff prove
the perpetrator was a supervisor or agent or that the perpetrator's employer knew or
21
should have known of the harassment and failed to take immediate and appropriate
corrective action. (§ 12940, subd. (j)(1).) The conclusion that Hirst has standing under
these provisions does not impose any additional duties on the employer as employers
have an affirmative duty to take all reasonable steps necessary to prevent their employees
from engaging in prohibited harassment, and to provide the necessary training and
guidance to their employees. (See §§ 12940, subd. (k), 12950.) As recognized by the
City's human resource manager in this case, these standards and affirmative duties
necessarily extend to employee conduct towards employees and other contract workers.
Protecting those who work alongside employees from harassment implements the
statutory goals of affording equal opportunity and eliminating discrimination and
harassment in the workplace. (See § 12920.) Under the statutory language, there is no
reasoned basis to distinguish between a contract worker who owns his or her own
business and a contract worker who is employed by an independent business to perform
the same type of work. Because both individuals are potentially subject to the same
harassing conduct, it is only reasonable to conclude the Legislature intended they have
equivalent remedies.
We also find unavailing the City's claim that a holding that individuals performing
work pursuant to a contract—such as Hirst—are protected under FEHA harassment
provisions will lead to frivolous lawsuits. A similar argument was made by the bill's
opponents in 1999, and rejected by the Legislature when it enacted the amendment at
issue here. (See Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1670 (1999-2000
Reg. Sess.) as amended June 1, 1999.)
22
The City cites prior decisions holding that volunteers have no standing to bring
FEHA claims to support its argument that for cost reasons the Legislature would not have
intended to protect employees of independent contractors. (See Munoz v. City of
Palmdale (1999) 75 Cal.App.4th 367, 372.) However, in 2014, the Legislature amended
section 12940, subdivision (j) to include an "unpaid intern" and "volunteer" within the
scope of FEHA protection. (Stats. 2014, ch. 302, § 1.) In so doing, the Legislature cited
its inclusion of independent contractors in 1999 as an example of the need to protect all
categories of workers, stating that "there is an argument that, like an independent
contractor, an unpaid intern may be subject to the same harassing conditions as traditional
employees and is therefore in need of protection under the law." (Assem. Com. on Labor
and Employment, Analysis of Assem. Bill No. 1443 (2013-2014 Reg. Sess.) as
introduced Jan. 6, 2014.)
Our conclusion that Hirst had legal standing to bring an action against the City
comports with the well-settled rule that courts must broadly construe FEHA provisions to
implement the legislative intent to provide protections to workers and end the practice of
sexual (and other forms of) harassment in the workplace, and to hold those with the
ability and authority to prevent and remedy the situation responsible for addressing the
problem. (See §§ 12920, 12921, 12993, subd. (a); Fitzsimons v. California Emergency
Physicians Medical Group (2012) 205 Cal.App.4th 1423, 1429-1430.) The Legislature
specifically provided that an employer is liable for sexual harassment committed by an
employee against an employee or "a person providing services pursuant to a contract."
(§ 12940, subd. (j)(1).) Hirst was an individual performing services pursuant to a
23
contract. There is no basis in this statutory phrase or the definition of the phrase to
preclude recovery for an individual who provided services under a contract merely
because he or she is also employed by a separate entity with respect to the work
performed.
DISPOSITION
Order affirmed. Appellant to bear respondent's costs on appeal.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
24
AI Brief
AI-generated · verify before citing
Holding. The court held that a phlebotomist providing services to a city police department under a contract between her employer and the county qualifies as a "person providing services pursuant to a contract" under the Fair Employment and Housing Act (FEHA), thereby granting her standing to sue the city for sexual harassment.
Issues
Whether a phlebotomist providing services to a city police department under a contract between her employer and the county has standing to sue the city for sexual harassment under FEHA.
Whether the trial court erred in denying the City's motion for judgment notwithstanding the verdict (JNOV) regarding the plaintiff's standing.
Disposition. affirmed
Quotations verified verbatim against the opinion
“We determine the evidence supports that Hirst was a "person providing services pursuant to a contract" and therefore she was entitled to recover against the City for its employee's sexual harassment.”
“The record shows Hirst was providing services to the City "pursuant to a contract" during the time she was sexually harassed by a City employee.”