Carrisales v. Department of Corrections

Facts

The California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) “declares certain kinds of discrimination and harassment in the workplace to be ‘unlawful employment practice[s].’” (Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132, 1134, quoting Gov. Code, § 12940.) At the time of the decision, the operative harassment provision was section 12940, subdivision (h)(1), which the court quoted “as relevant”: “It shall be an unlawful employment practice … : [¶] … [¶] For an employer … or any other person, because of … sex, … to harass an employee or applicant. Harassment of an employee or applicant by an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An entity shall take all reasonable steps to prevent harassment from occurring.” (Carrisales, supra, 21 Cal.4th at p. 1135.) (The substance of this provision is today found at section 12940, subdivision (j); the analysis below preserves the court’s own subdivision references.)

FEHA defines a “person” broadly, “as including ‘one or more individuals … .’” (Carrisales, supra, 21 Cal.4th at p. 1135, quoting Gov. Code, § 12925, subd. (d).) As the court observed, the phrase “any other person” is sweeping: it “is broad and certainly includes Selkirk; indeed, it includes everyone in the world.” (Ibid.) That breadth, set against FEHA’s structural focus on “employment practices,” framed the entire dispute.

The plaintiff, Maryann Carrisales, was an employee of the Department of Corrections. (Carrisales, supra, 21 Cal.4th at p. 1134.) She sued the Department, two of her supervisors, and a coworker, Dave Selkirk, for sexual harassment in violation of FEHA, alleging “that Selkirk repeatedly sexually harassed her, and that the defendant supervisors knew of the sexual harassment but failed to take immediate and appropriate corrective action.” (Ibid.) The critical, and ultimately dispositive, characteristic of Selkirk was his status: he was a coworker, “not … a supervisor nor an agent,” and the question the court took up was confined to that nonsupervisory posture. (Id. at pp. 1134, 1137.) The merits of whether harassment in fact occurred were not at issue; the case was decided on a pure question of statutory coverage.

Procedural history

The trial court (Ben T. Kayashima, Judge) “granted summary judgment in favor of each defendant.” (Carrisales, supra, 21 Cal.4th at p. 1134.) Carrisales appealed. The Court of Appeal, Fourth Appellate District, Division Two, in an opinion authored by Justice Richli, reversed in part and affirmed in part. (Ibid.) As to the Department, the court reversed, “finding a triable issue of fact regarding whether the Department and plaintiff’s supervisors took immediate and appropriate corrective action.” (Ibid.) As to the individual supervisors, it affirmed summary judgment, “holding that they could not be held personally liable under the FEHA for sexual harassment that they neither assisted, encouraged, nor participated in themselves.” (Ibid.) The Supreme Court emphasized that those rulings “are not before us on review, and we do not consider them.” (Ibid.)

The only ruling carried up was the Court of Appeal’s affirmance of summary judgment for the coworker, Selkirk, which rested on the holding that “‘a nonsupervisory coworker cannot be held liable for sexual harassment under FEHA.’” (Carrisales, supra, 21 Cal.4th at p. 1134.) That court was careful to disclaim any moral approval of harassment, noting that a victim “may have injunctive or tort remedies against the harasser depending on the precise facts of the case,” and that its ruling meant “only that ‘the victim’s legal remedy [against a coworker harasser] does not lie under FEHA.’” (Ibid.) The Supreme Court “granted plaintiff’s petition for review, which raised only the issue of the liability of a coworker for harassment under the FEHA.” (Ibid.) Review was thus expressly limited to that single legal question.

Issue

The court framed the question narrowly and twice. At the outset: “We must decide whether an employee may be personally liable to a coworker for sexual harassment under the FEHA.” (Carrisales, supra, 21 Cal.4th at p. 1134.) And opening the discussion: “The sole issue before us is whether the FEHA makes a nonsupervisory employee personally liable to a coworker for sexual harassment.” (Id. at pp. 1134–1135.) Resolution “require[d] us to interpret … section 12940, subdivision (h)(1),” and in particular to decide whether the statute’s prohibition on harassment by “any other person” extended personal liability to a nonsupervisory coworker, or whether — read in the context of the whole provision — it reached only the employer’s failure to respond to such harassment. (Id. at p. 1135.) The court was emphatic about the limits of what it was deciding: it expressed “no opinion regarding the liability of a supervisor for harassment or any issue other than the one before us.” (Id. at p. 1138, fn. 3.)

Holding

Reasoning

The statute must be read as a whole, not by isolating the phrase “any other person.” The plaintiff’s argument rested “primarily on the statutory reference to ‘any other person,’” a phrase the court agreed was capacious enough to “include[] everyone in the world.” (Carrisales, supra, 21 Cal.4th at p. 1135.) But the court declined to read that clause in isolation, invoking the settled canon that courts “must not view isolated language out of context, but instead interpret the statute as a whole, so as to make sense of the entire statutory scheme.” (Ibid., citing People v. McCart (1982) 32 Cal.3d 338, 342–343.) Read whole, “[s]ection 12940 defines what is ‘an unlawful employment practice.’ … If there is no proscribed ‘employment practice,’ the FEHA does not apply.” (Carrisales, supra, 21 Cal.4th at p. 1135.)

The second sentence of the provision identifies the unlawful practice — and it is the employer’s. The decisive textual move was the court’s reading of the provision’s second sentence, which “makes clear what is an unlawful employment practice in this context”: harassment by an employee “other than an agent or supervisor” is “unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” (Carrisales, supra, 21 Cal.4th at pp. 1135–1136.) From this the court drew the structural inference that controls the case: “If an employee other than an agent or supervisor commits the harassment, and the employer takes immediate and appropriate corrective action … there simply is no ‘unlawful employment practice’ that the FEHA governs.” (Id. at p. 1136.) The court declined to make “the harassing coworker’s liability … turn on the employer’s knowledge and failure to take action,” reasoning instead that “[i]f the employer takes appropriate action, no unlawful employment practice has occurred. If the employer fails to take such action, there may be an unlawful employment practice, but it is by the employer, not the coworker.” (Ibid.)

The remedial purpose of FEHA does not override its structural focus on employment practices. The court engaged the plaintiff’s policy argument that FEHA’s declared purpose — to provide “effective remedies which will eliminate discriminatory practices” — would be “defeated … if she had no recourse against the harasser personally.” (Carrisales, supra, 21 Cal.4th at pp. 1136–1137, quoting Gov. Code, §§ 12920, 12920.5.) The court agreed that preventing harassment is “of utmost importance” but answered that “the FEHA proscribes and provides remedies for unlawful employment practices,” and that harassment by a nonsupervisor is not such a practice where the employer responds appropriately. (Id. at p. 1136.) Critically, the court underscored that its holding did not leave victims without any remedy: it “does not necessarily prevent a harasser from being personally liable to the victim under some other statute or theory of tort,” and “does not immunize anyone, including a coworker, from the consequences of conduct that is otherwise tortious.” (Ibid.) The court acknowledged a residual gap — “circumstances could exist in which a plaintiff would not receive a monetary recovery” for harassment “not amounting to a tort outside of the FEHA” where the employer acts promptly — but characterized these as “very narrow.” (Ibid.)

Reno v. Baird neither compels nor forecloses the result, because discrimination and harassment are treated differently. The court distinguished its prior decision in Reno v. Baird (1998) 18 Cal.4th 640, which had held that individuals are not personally liable for discrimination under FEHA. Reno “involved solely the question of individual liability for discrimination,” and had expressly “expressed no opinion ‘regarding individuals’ liability for harassment.’” (Carrisales, supra, 21 Cal.4th at p. 1137, quoting Reno, supra, 18 Cal.4th at p. 645, fn. 2.) Because section 12940 “treat[s] the two differently, and for a reason” — “the employer ultimately does the former; coworkers and supervisors do the latter” — the discrimination holding neither required nor barred a parallel rule for harassment. (Id. at p. 1137, quoting Reno, supra, 18 Cal.4th at p. 657.) “[E]ach question must be decided separately,” the court held, examining “the harassment language to decide the harassment issue, as we do here.” (Ibid.)

The retaliation provision’s different wording does not control. The court rejected the plaintiff’s analogy to the FEHA retaliation provision (then § 12940, subd. (f)), which also reaches “any ‘person’” and which “[s]ome cases” had read in dicta to impose personal coworker liability. (Carrisales, supra, 21 Cal.4th at pp. 1137–1138, citing Page v. Superior Court (1995) 31 Cal.App.4th 1206 and Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.) “[W]hatever rule might apply to retaliation (we express no opinion),” the court explained, “the statutory language regarding retaliation contains no additional language comparable to the second sentence of section 12940(h)(1)” — the sentence that ties unlawfulness to the employer’s failure to act. (Id. at p. 1138.) The court “must construe section 12940(h)(1) in its entire context, not by reference to the quite different overall language of section 12940, subdivision (f).” (Ibid.)

Administrative interpretations and legislative history were unpersuasive or inconclusive. The plaintiff and the Fair Employment and Housing Commission (FEHC), as amicus, pointed to FEHC precedential decisions. The court found that most involved supervisor harassment and so “have no bearing on this question,” and that only two — Madera County and Lake County — imposed coworker liability, both resting “solely on section 12940(h)(1)’s ‘any other person’ language” with “little analysis.” (Carrisales, supra, 21 Cal.4th at pp. 1138–1139.) Because “ultimately statutory interpretation is a question of law the courts must resolve,” and because Lake County postdated the statute by “many years,” the agency view warranted little deference. (Id. at p. 1139, quoting Reno, supra, 18 Cal.4th at p. 660.) Turning to the legislative history of Assembly Bill No. 1985 (1981–1982 Reg. Sess.), which codified the substance of the provision, the court found it “inconclusive,” noting that “the most striking feature” of the materials was “the absence of any clearly stated legislative intent to impose personal liability on nonemployer individuals.” (Id. at p. 1139.)

Deterrence is adequately served by employer duties, and the policy choice belongs to the Legislature. Finally, the court addressed the plaintiff’s deterrence argument and the suggestion that courts “cannot rely upon employers to provide effective deterrence at the coworker level.” (Carrisales, supra, 21 Cal.4th at p. 1140.) The court reasoned that the employer’s statutory duties — to take corrective action and to “take all reasonable steps to prevent harassment from occurring” — “force[] employers to control and, as necessary, discipline their employees,” so that “[t]he statute deters coworker harassment with or without personal liability.” (Id. at pp. 1139–1140.) It also observed that federal law under Title VII does not impose individual liability, which “undercuts plaintiff’s policy arguments.” (Id. at p. 1140.) But the court was explicit that the broader policy contention “is best directed to the Legislature, which can study the various policy and factual questions and decide what rules are best for society.” (Ibid.) “If the Legislature believes it necessary or desirable to impose individual liability on coworkers, it can do so. But we believe that had it already intended to do so, it would have used clearer language.” (Ibid.) That express invitation was soon accepted.

Significance

Carrisales is best understood today as a decision whose holding has been legislatively overtaken but whose method and structure endure. As a matter of black-letter law, it no longer states the rule: within roughly a year, the Legislature enacted Government Code section 12940, subdivision (j)(3), which makes an employee “personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer … knows or should have known of the conduct.” That amendment — Assembly Bill No. 1856, Statutes 2000, chapter 1047, operative January 1, 2001 — was a direct response to Carrisales, and later courts have said so. (See, e.g., Chapman v. Enos (2004) 116 Cal.App.4th 920, 928, fn. 7.) Today, then, the very coworker the court held beyond FEHA’s reach is individually liable for his own harassment, and the employer’s response is irrelevant to that individual liability.

What survives is doctrinally significant in three ways. First, Carrisales remains a leading illustration of the principle that the harassment provision is structured around the “unlawful employment practice,” and that the employer’s duty to prevent and to correct is the statutory hinge — a structure unchanged by the 2000 amendment, which added individual liability without disturbing the employer-side framework. (Carrisales, supra, 21 Cal.4th at pp. 1135–1136.) Second, it completed the Reno v. Baird line by confirming that discrimination and harassment are analyzed separately under FEHA — a distinction that still governs (individuals remain non-liable for discrimination, but are now liable for their own harassment). (Id. at p. 1137.) Third, the decision is a textbook example of judicial restraint in statutory interpretation: faced with a genuine policy gap, the court declined to legislate and instead pointed to the Legislature, which acted. (Id. at p. 1140.) For the hostile-work-environment instructions in CACI Nos. 2521A–2521C, Carrisales supplies the historical baseline against which the current rule of individual liability is measured.

Key quotes

“We must decide whether an employee may be personally liable to a coworker for sexual harassment under the FEHA. We conclude that the FEHA does not apply to actions between coworkers not involving a supervisorial relationship.” (Carrisales, supra, 21 Cal.4th at p. 1134.)

“If the employer takes appropriate action, no unlawful employment practice has occurred. If the employer fails to take such action, there may be an unlawful employment practice, but it is by the employer, not the coworker.” (Id. at p. 1136.)

“If the Legislature believes it necessary or desirable to impose individual liability on coworkers, it can do so. But we believe that had it already intended to do so, it would have used clearer language than that found in section 12940(h)(1).” (Id. at p. 1140.)

Read the full opinion (Justia) →

Practice pointer

Open questions

The court expressly reserved several questions, some of which the later statute resolved and some of which it did not. It “express[ed] no opinion regarding the liability of a supervisor for harassment or any issue other than the one before us.” (Carrisales, supra, 21 Cal.4th at p. 1138, fn. 3.) It declined to decide whether the FEHA retaliation provision — which also reaches “any ‘person’” but lacks the second-sentence language tying unlawfulness to the employer’s failure to act — imposes personal liability on coworkers, saying “whatever rule might apply to retaliation (we express no opinion).” (Id. at pp. 1137–1138.) That retaliation question was later answered against individual liability in Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, so the gap Carrisales left is now largely filled, though the interaction of the two provisions continues to generate litigation. The court also acknowledged, without resolving, the “very narrow” set of “circumstances” in which a harassment victim “would not receive a monetary recovery” — where a nonsupervisor’s conduct is “not amounting to a tort outside of the FEHA” and the employer acts promptly. (Id. at p. 1136.) The 2000 amendment closed much of that gap by making the individual harasser personally liable, but the residual scenario — harassing conduct that is neither an independent tort nor attributable to an employer that responded appropriately — illustrates the seam between FEHA and common-law remedies that the decision left for the Legislature to address, and that it ultimately did.