Doe v. Capital Cities

Facts

The California Fair Employment and Housing Act makes it an unlawful employment practice for an employer to sexually harass an employee or an applicant. (Gov. Code, § 12940, subd. (h); Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1045.) The Act protects an “applicant,” defined by regulation as “any individual who otherwise indicates a specific desire to an employer . . . to be considered for employment.” (Ibid.) The statute’s liability provision is the hinge of the case: section 12940, subdivision (h)(1), provided that “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.” (Doe, supra, 50 Cal.App.4th at p. 1046.) Courts had read that provision to mean that an employer “is strictly liable for the harassing actions of its supervisors and agents,” while it “is only liable for harassment by a coworker if the employer knew or should have known of the conduct and failed to take immediate corrective action.” (Ibid.)

Because the case arose on demurrer, the court treated the operative second amended complaint as “‘admitting all material facts properly pleaded.’” (Doe, supra, 50 Cal.App.4th at p. 1042.) The plaintiff, an aspiring actor who sued anonymously as John Doe, met defendant Jerry Marshall — an associate director of casting and talent for defendant ABC Entertainment, a division of American Broadcasting Companies, Inc., itself a subsidiary of defendant Capital Cities — at a movie screening at the Directors Guild in July 1993. (Id. at pp. 1042–1043.) Marshall said the plaintiff “‘had a great look,’” told him ABC was developing programs suitable for him, and invited him to an interview; the next day the plaintiff read for Marshall at the ABC Entertainment Center in Century City, and Marshall introduced him to a supervisor who was likewise impressed. (Id. at p. 1042.)

Over the following weeks, Marshall “spent several hours a day on most days” working with the plaintiff on efforts Marshall said “‘would lead to an employment contract’” with ABC — auditions, a taping, meetings with industry executives, and attempts to find the plaintiff an agent and a publicist. (Doe, supra, 50 Cal.App.4th at p. 1043.) Marshall “‘REPEATEDLY TOLD [HIM]: “I’m your Manager at ABC”’” and said he would introduce the plaintiff as a new ABC star at an annual event. (Ibid.) After a Saturday spent preparing for final auditions and a dinner Marshall said would be with ABC executives, Marshall told the plaintiff he “‘had a brunch to go to in the morning,’” and instructed him to be at Marshall’s home at 8:00 a.m. the next day. (Ibid.)

On Sunday, August 15, 1993, the plaintiff went to Marshall’s home expecting to meet entertainment-industry executives. (Doe, supra, 50 Cal.App.4th at p. 1043.) Marshall gave him a glass of tea that, unknown to him, contained a drug; when the plaintiff awoke he was bound and tied, was given injections of an unknown drug, and was “beaten and gang-raped by Marshall and four named codefendants,” none of whom was alleged to be connected with ABC. (Ibid.) When the plaintiff briefly broke free and tried to escape, Marshall and a codefendant forcibly returned him to the house and drugged him again, and Marshall ultimately abandoned him in Beverly Hills, where police found him. (Ibid.) The ordeal caused severe emotional distress and months of memory loss. (Ibid.) In late October 1993, Marshall and others grabbed and stabbed the plaintiff outside his home; he reported the stabbing to police and ABC, and over the next six months the defendants harassed and threatened him and poisoned his dogs. (Ibid.) In July 1994, the plaintiff filed a sexual-harassment complaint with the Department of Fair Employment and Housing. (Id. at p. 1044.)

Procedural history

The plaintiff filed a ten-cause-of-action complaint. Against Marshall and ABC he alleged statutory and common-law sexual harassment, retaliation for opposing harassment, and failure to prevent harassment and retaliation; against ABC alone he alleged negligent hiring, training, and supervision; and against the individual defendants he alleged assault, battery, conspiracy, false imprisonment, intentional infliction of emotional distress, and defamation. (Doe, supra, 50 Cal.App.4th at p. 1044.) The complaint had also alleged that ABC was vicariously liable for Marshall’s common-law intentional torts, but after the Supreme Court decided Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992 and Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, the plaintiff abandoned that respondeat-superior theory. (Doe, supra, at p. 1045.)

ABC demurred to every cause of action against it. (Doe, supra, 50 Cal.App.4th at p. 1044.) The trial court (Judge Lillian M. Stevens) sustained the demurrer without leave to amend and dismissed ABC from the case. (Ibid.) The plaintiff appealed, joined by four amici curiae — the Screen Actors Guild, the American Federation of Television and Radio Artists, the ACLU of Southern California, and the California Women’s Law Center. (Ibid.) The Court of Appeal reversed as to the first and fifth causes of action (statutory sexual harassment and harassment in violation of public policy) and affirmed in all other respects. (Id. at p. 1054.) The opinion was unanimous, and the Supreme Court denied review on February 26, 1997. (Id. at p. 1055.)

Issue

The central question was whether the complaint stated a FEHA sexual-harassment claim against the employer for the casting director’s conduct. That question divided into three parts the court had to resolve in sequence. First, whether the Act reached a same-gender sexual assault pleaded as a hostile-work-environment claim by an applicant rather than an employee. Second — the doctrinally decisive question — whether Marshall was an “agent” or “supervisor” of ABC, so that the employer was strictly liable under Government Code section 12940, subdivision (h)(1), or instead a mere “coworker,” so that liability required the employer’s knowledge and failure to act. (Doe, supra, 50 Cal.App.4th at pp. 1046–1047.) Third, whether a sexual assault committed on a Sunday at the harasser’s home, “away from the workplace and not during work hours,” was sufficiently “work-related” to be actionable. (Id. at pp. 1048–1049.) A separate issue was whether the plaintiff stated a negligent-hiring claim, which turned on whether ABC’s alleged knowledge of Marshall’s propensities encompassed the particular harm that occurred. (Id. at pp. 1054–1055.)

Holding

Reasoning

FEHA reaches same-gender assault, and a violent rape can be a hostile-environment claim. The court first cleared away threshold defenses. The Act “applies to same gender sexual harassment.” (Doe, supra, 50 Cal.App.4th at p. 1045, citing Matthews v. Superior Court (1995) 34 Cal.App.4th 598 and Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409.) The plaintiff proceeded on a hostile-work-environment theory, and “a violent sexual assault, such as that alleged by plaintiff, can be the basis of such a claim,” because harassment “is defined to include physical harassment, such as an assault.” (Ibid.) That the assault was also a serious crime did not insulate the employer: “it is of no legal significance that the extreme and aggravated assault alleged here is criminal because other forms of sexual assault are also criminal,” and “[t]he fact that the sexual harassment may also be criminal in no way undermines the potential actionable culpability of an employer.” (Id. at pp. 1045–1046.) The court likewise dispatched the applicant question in a footnote, observing that nothing in the record showed the trial court had ruled against the plaintiff on that basis and that the Act plainly extends to applicants. (Id. at p. 1045, fn. 5.)

The agency/coworker line is the case’s organizing principle. The court then framed the dispositive distinction. Reading section 12940, subdivision (h)(1), it explained that the provision “has been interpreted to mean that the employer is strictly liable for the harassing actions of its supervisors and agents . . . but that the employer is only liable for harassment by a coworker if the employer knew or should have known of the conduct and failed to take immediate corrective action.” (Doe, supra, 50 Cal.App.4th at p. 1046, citing Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397 and Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.) “Thus, characterizing the employment status of the harasser is very significant.” (Ibid.) Everything turned on which side of that line Marshall occupied.

The court rejected ABC’s “coworker” characterization and pleaded Marshall as an agent. ABC argued that because the plaintiff “never explicitly alleged that Marshall was a supervisor or agent,” it could not be strictly liable, and it suggested Marshall was merely the plaintiff’s coworker. (Doe, supra, 50 Cal.App.4th at p. 1046.) The court disagreed, construing the pleading liberally. Because the Act protects applicants, “the counterpart to the position of supervisor must be the person to whom application for employment is made”; before employment, an applicant “has no ‘supervisor’ so that logically, under the Act, the ‘agent’ of the employer is the one designated to receive and process applications.” (Id. at p. 1047.) Marshall fit the agency definition: “‘An agent is one who represents another, called the principal, in dealings with third persons.’” (Ibid., quoting Civ. Code, § 2295.) Drawing on Witkin, the court explained the difference from a mere employee: an employee “works for his employer, while an agent also acts for and in the place of the principal for the purpose of bringing him into legal relations with third persons.” (Ibid.) Because the complaint alleged Marshall acted “as an agent for ABC in terms of finding, grooming, and recruiting actors for ABC’s shows,” the allegations sufficed to establish agency vis-à-vis the plaintiff’s position “as a potential hiree at ABC.” (Ibid.) That conclusion triggered ABC’s potential strict liability and made the coworker negligence standard inapplicable.

Respondeat-superior principles remained relevant to the off-site, off-hours assault. Agency status did not end the inquiry, because “the sexual assault occurred on a Sunday at Marshall’s home.” (Doe, supra, 50 Cal.App.4th at p. 1047.) The court reconciled two ideas. On one hand, an employer’s FEHA liability for a supervisor’s or agent’s harassment “is broader than the liability created by the common law principle of respondeat superior.” (Id. at p. 1048.) On the other, harassment “need not occur in the workplace” but “must occur in a work-related context,” and respondeat-superior principles “are nonetheless relevant in determining liability when . . . the sexual harassment occurred away from the workplace and not during work hours.” (Id. at pp. 1048–1049, quoting Capitol City Foods, Inc. v. Superior Court (1992) 5 Cal.App.4th 1042.) The court drew on the Supreme Court’s observation in Farmers that although “rigid principles of respondeat superior would not appear to apply to FEHA claims, they do provide guidance in such determinations.” (Id. at p. 1048.)

The court distinguished Lisa M. on foreseeability rather than treating it as a bar. The most demanding precedent was Lisa M., where the Supreme Court held a hospital not vicariously liable for an ultrasound technician’s molestation of a patient because the required causal nexus — “that the tort be engendered by or arise from the work” — was missing. (Doe, supra, 50 Cal.App.4th at p. 1049.) The court read Lisa M.’s foreseeability test as turning not on “statistical frequency, but [on] a relationship between the nature of the work involved and the type of tort committed,” such that “[t]he employment must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought.” (Id. at pp. 1049–1050.) Applied to a casting director, that test cut the plaintiff’s way: Marshall “identified, interviewed, and selected aspiring actors,” and a casting director “acting as a kind of gatekeeper to the glamorous world of entertainment” occupies a position that will “predictably ‘create the risk [a casting director] will commit intentional torts of the type for which liability is sought.’” (Id. at pp. 1049–1050.) The holding of Lisa M. was therefore “not analytically incompatible” with the plaintiff’s claim. (Id. at p. 1049.)

The pattern of control made the Sunday brunch work-related. Turning to the specific allegations, the court found them “adequate as a matter of law to hold ABC liable for Marshall’s actions” because his conduct “was sufficiently work-related.” (Doe, supra, 50 Cal.App.4th at p. 1050.) It was “not significant that plaintiff never alleged that Marshall told him that the Sunday brunch was an ABC-sponsored event,” because Marshall “regularly spent several hours a day with him,” arranged auditions and meetings, and declared he was the plaintiff’s “‘Manager at ABC’” — a pattern by which the plaintiff was “essentially at Marshall’s beck and call.” (Ibid.) When Marshall directed the plaintiff to his home for an 8:00 a.m. brunch, “it is hardly surprising that plaintiff would accede,” given that the request followed a dinner “supposedly arranged by Marshall for the purpose of having plaintiff meet ABC executives.” (Ibid.) The court emphasized the atypical hiring process for actors, where casting directors “not only identify talent, but also develop and promote prospective applicants,” so the relevant circumstances “are not necessarily limited to a fixed site.” (Id. at pp. 1050–1051.) “All that is required is a showing of a legally sufficient nexus between the employment relationship and the act of harassment,” and the plaintiff’s presence at Marshall’s home was, “at least for pleading purposes, a sufficient nexus to show that the assault and rape occurred in a work-related context.” (Id. at p. 1051.)

Distinguishing Capitol City Foods: control, not “but for” causation. The court took care to reconcile its result with Capitol City Foods, the only published case addressing employer liability for a supervisor’s off-duty, off-site harassment. (Doe, supra, 50 Cal.App.4th at p. 1051.) There, a Burger King supervisor and a subordinate arranged a social “date” at the employee’s and a coworker’s instigation, and the court found the nexus to employment insufficient even though the supervisor phoned the restaurant to excuse the employee from a shift. (Id. at pp. 1051–1052.) The distinction was that in Capitol City Foods “there was no evidence that the supervisor exercised his authority to compel the plaintiff to accompany him to the place in which the assault occurred,” and the impetus for the non-work date came from the plaintiff. (Id. at p. 1052.) By contrast, the present case involved a sustained “pattern of conduct” in which “the applicant’s admission to employment requires continuous participation in a variety of activities at various locations in pursuit of his acting career.” (Ibid.) The court thus rejected any rule that off-site timing defeats liability, grounding the difference in the harasser’s exploitation of his gatekeeping authority.

The retaliation and failure-to-prevent theories failed for pleading defects. The court rejected the plaintiff’s remaining FEHA theories. The retaliation claim under section 12940, subdivision (f), was “a disguised effort to foist vicarious liability onto ABC” for post-assault torts the plaintiff had abandoned, and in any event the alleged retaliatory acts “occurred before plaintiff filed his sexual harassment complaint” with the DFEH in 1994; the plaintiff “never alleged the date, if any, he informed ABC of the sexual assault.” (Doe, supra, 50 Cal.App.4th at p. 1053.) The failure-to-prevent claim under subdivision (i) failed because the plaintiff did not allege facts showing ABC’s “prior knowledge of Marshall’s propensity to engage in this particular form of sexual harassment.” (Id. at pp. 1053–1054.)

Negligent hiring required knowledge of the particular risk that materialized. Finally, the court affirmed dismissal of the negligent-hiring claim. An employer can be liable for negligently hiring, supervising, or retaining an unfit employee where “the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Doe, supra, 50 Cal.App.4th at p. 1054, citing Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828.) The plaintiff alleged ABC knew Marshall used “‘serious, mind-altering illegal drugs,’” used his position “‘to gain sexual favors,’” and that the “‘casting couch’” was common in the industry. (Id. at p. 1054.) None of that sufficed: knowledge that Marshall “personally used ‘serious mind-altering drugs’ does not equate with knowledge that he would surreptitiously use drugs to place a prospective employee into a situation of helplessness before violently assaulting him.” (Ibid.) Likewise, knowledge that he used his authority “to extract or to coerce sexual favors is not knowledge that he would first drug and then attack a potential employee”; in negligent-hiring terms, “those are qualitatively different situations.” (Id. at pp. 1054–1055.) The court noted that the word “gain” aligned with quid pro quo harassment, “but that is not the basis of plaintiff’s claim.” (Id. at p. 1054.) The opinion was unanimous, with no separate concurrence or dissent. (Id. at p. 1055.)

Significance

Doe v. Capital Cities is a foundational pleading-stage articulation of the FEHA distinction that CACI Nos. 2521A through 2525 now instruct on: strict liability for harassment by a supervisor or agent versus an employer’s negligence-based liability for coworker harassment. The opinion’s enduring value is its insistence that the harasser’s status is the threshold characterization on which the entire liability standard turns, and its willingness to treat a non-traditional gatekeeper — a casting director who “process[es]” applications and develops talent — as the employer’s “agent” for that purpose. (Doe, supra, 50 Cal.App.4th at pp. 1046–1047.) The case also pushes the “work-related context” inquiry beyond the four walls of the workplace and the bounds of working hours, holding that a sustained pattern of supervisory control can carry the employment nexus to an off-site, off-hours assault — provided the harasser exploited his authority to bring the victim there. (Id. at pp. 1050–1052.) Its careful reconciliation of Lisa M. and Capitol City Foods supplies the analytic vocabulary — foreseeability tied to “the nature of the work,” and a nexus grounded in exploited authority rather than “but for” causation — that later courts deploy when off-premises conduct is at issue. (Id. at pp. 1049–1052.) At the same time, the negligent-hiring holding marks a firm limit: an employer’s generalized knowledge of misconduct does not establish foreseeability of a categorically different and more extreme harm. (Id. at pp. 1054–1055.) Because the statutory subdivision lettering has since shifted, practitioners should read the court’s references to subdivision (h) and (h)(1) as the 1996 numbering for what is now the harassment and employer-liability scheme.

Key quotes

“This section has been interpreted to mean that the employer is strictly liable for the harassing actions of its supervisors and agents . . . but that the employer is only liable for harassment by a coworker if the employer knew or should have known of the conduct and failed to take immediate corrective action. Thus, characterizing the employment status of the harasser is very significant.” (Doe, supra, 50 Cal.App.4th at p. 1046.)

“It is not implausible that a casting director, acting as a kind of gatekeeper to the glamorous world of entertainment, occupies a position which will predictably ‘create the risk [a casting director] will commit intentional torts of the type for which liability is sought’ in this matter.” (Id. at p. 1050.)

“Plaintiff’s presence at Marshall’s home on August 15th was, at least for pleading purposes, a sufficient nexus to show that the assault and rape occurred in a work-related context.” (Id. at p. 1051.)

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Practice pointer

Open questions

The court resolved the case at the pleading stage and reserved several questions. It expressly declined to decide whether article I, section 8 of the California Constitution — barring disqualification from employment “because of sex” — could “by itself . . . create, based upon the allegations in the second amended complaint, a cause of action against ABC for Marshall’s actions,” resting the public-policy claim instead on Government Code section 12940. (Doe, supra, 50 Cal.App.4th at p. 1053, fn. 7.) Because the case arose on demurrer, the court decided only that the allegations were “adequate . . . to establish a statutory claim” and that strict liability would attach “if plaintiff can prove what he has alleged” — leaving every factual predicate, including Marshall’s agency status and the work-related nexus, to be proved on remand. (Id. at pp. 1052–1053.) The opinion also leaves unsettled how far the “gatekeeper”-agent and off-site-nexus reasoning extends beyond the distinctive, non-static hiring process for actors, where the court repeatedly stressed that the application process “is far from static” and “not necessarily limited to a fixed site.” (Id. at p. 1051.)