Matthews v. Superior Court

Facts

FEHA establishes “that freedom from job discrimination on certain grounds, including a person’s sex, is a civil right” (Gov. Code, § 12921), declares such discrimination against public policy (§ 12920), and makes it an unlawful employment practice (§ 12940). (Matthews, supra, 34 Cal.App.4th at p. 602.) Section 12940 reaches harassment by “‘an employer . . . or any other person,’” and a separate provision makes it unlawful “‘[f]or any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part.’” (Id. at pp. 602–603, quoting Gov. Code, § 12940, subds. (h)(1), (g).) Section 12965, subdivision (b), authorizes a civil action against “‘the person, employer, labor organization or employment agency’” named in the administrative complaint. (Id. at p. 603.) Same-sex sexual harassment qualifies as gender harassment under the Act. (Id. at p. 603 [§ 12940, subd. (h)(3)(C)].) The court grounded its construction in FEHA’s declared remedial purpose: the Legislature found that denying employment opportunity and discriminating in terms of employment “‘foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities . . . , and substantially and adversely affects the interest of employees, employers, and the public in general,’” and declared the Act’s purpose “‘to provide effective remedies which will eliminate such discriminatory practices.’” (Id. at p. 602, quoting Gov. Code, § 12920.) That purpose — and the directive that FEHA be “‘construed liberally for the accomplishment of the purpose thereof’” — frames the whole analysis. (Id. at pp. 602, 605.)

Because the case arose on demurrer, the court took the facts as pleaded, “admitting all material facts properly pleaded.” (Matthews, supra, 34 Cal.App.4th at p. 600, fn. 2.) Scott Matthews, a heterosexual male, worked as a principal admitting clerk at the UCLA Emergency Medicine Center. (Id. at p. 600.) He alleged he was subjected to verbal and physical sexual harassment by homosexual male coworkers, including his immediate supervisors, A. J. Gonzales and Jorge Benitez — “sexual advances,” “lewd, vulgar and lascivious comments,” coworkers “brushing and/or rubbing their bodies . . . against [his] person,” and repeated unwanted touching. (Id. at p. 600.) When Matthews complained, the center’s medical director acknowledged awareness of “rampant and ongoing sexual harassment,” and the administrative director, Linda DaPar, met with him in a “hostile, threatening and condescending manner,” characterized the harassment as “trivial and insignificant,” refused corrective action, and breached a promised confidentiality by telephoning Gonzales. (Id. at pp. 600–601.) The harassment intensified after he was branded a “snitch,” and Matthews alleged constructive discharge. (Id. at p. 601.)

Procedural history

Matthews sued the Regents of the University of California, the supervisors Gonzales and Benitez, the medical director Dr. Morgan, and the administrative director DaPar, alleging FEHA causes of action for hostile-environment sexual harassment, retaliation, constructive discharge, and disparate treatment, plus non-FEHA tort claims. (Matthews, supra, 34 Cal.App.4th at pp. 601–602.) He did not name his nonsupervisory coworkers. (Id. at p. 601.) The individual defendants demurred to the FEHA claims on the ground that the Act imposes no individual liability; the trial court sustained the demurrers without leave to amend. (Id. at p. 602.) The Court of Appeal issued an alternative writ, the trial court declined to comply, and after briefing and argument the appellate court issued a peremptory writ of mandate directing the trial court to overrule the demurrers as to the first through third causes of action. (Id. at pp. 599, 602, 606.) The opinion was modified on denial of rehearing. (Id. at p. 606.)

Issue

The controlling question was whether FEHA imposes personal liability on individual supervisors for workplace sexual harassment, or whether — as the trial court held — liability runs only against the employing entity. More precisely, whether the supervisory defendants, “all supervisory personnel who were aware of, and at times participated in, the unlawful conduct, are ‘persons’ subject to personal liability for sexual harassment under the FEHA.” (Matthews, supra, 34 Cal.App.4th at p. 600.)

Holding

Reasoning

The statutory text reaches “persons,” and that word must be given effect. Construing the Act under settled canons — ascertaining legislative intent, giving each word its ordinary meaning, avoiding surplusage, and harmonizing related provisions — the court emphasized that FEHA repeatedly uses “person.” (Matthews, supra, 34 Cal.App.4th at pp. 603–604.) Quoting Page v. Superior Court (1995) 31 Cal.App.4th 1206, it explained: “‘The language of [the] FEHA indicates the Legislature intended to authorize administrative and civil complaints against a supervisor for harassment and retaliation. These unlawful employment practices can be committed by a “person,” a term defined in [the] FEHA to include an individual. . . . Consistently, the enforcement provisions of [the] FEHA include a “person” among those who may be accused in a FEHA action.’” (Id. at pp. 603–604, quoting Page, supra, 31 Cal.App.4th at pp. 1211–1212.) Had the Legislature meant to confine liability to the employer, “it could have amended the FEHA to absolve individual persons of liability.” (Id. at p. 604.)

Agency deference: the FEHC’s consistent construction. The court gave “great weight” to the Fair Employment and Housing Commission’s longstanding position. The Commission “has consistently held in harassment cases that individuals with authority to hire and fire or to control the conditions of employment, who either participate in the unlawful conduct, tacitly approve of the improper action, fail to take action upon learning of the discriminatory conduct, or participate in the decisionmaking process which is the basis of the discriminatory condition, are personally liable under the FEHA as agents of the employer.” (Matthews, supra, 34 Cal.App.4th at p. 604.) In assessing agency, the Commission looks “‘to the degree an entity or person significantly affects access to employment.’” (Ibid.) The court collected a series of precedential FEHC decisions imposing personal liability on supervisors, partners, and owners with hire-and-fire power who perpetrated or tacitly approved harassment. (Id. at pp. 604–605.) Because the Commission’s position predated and survived multiple FEHA amendments, the court “assume[d] the Legislature was aware of this construction when it enacted and amended the FEHA.” (Id. at p. 604.)

The agency test and its limits. The court’s reliance on the FEHC decisions did more than show consistency; it imported the Commission’s test for which individuals are reachable. In assessing agency, the Commission looks “‘to the degree an entity or person significantly affects access to employment,’” imposing personal liability on “‘[individuals] having supervisory status who either themselves did the wrongful act or participated in the decision-making process which formed the basis of the discriminatory condition.’” (Matthews, supra, 34 Cal.App.4th at p. 604.) The collected decisions sort the cases along exactly that axis: liability fell on a “primary harasser” executive director, on a vice-president and a sole owner with power to hire and fire who themselves harassed, and on a partner who “perpetrated the harassment.” (Id. at pp. 604–605.) Tellingly, one decision the court cited — DFEH v. Madera County — held an immediate supervisor with “‘significant power over [the complainant’s] employment status’” personally liable for a sexual assault, while declining to hold liable the supervisor’s superior, “‘who took “strong action” immediately upon learning of [the] assault.’” (Id. at p. 604.) That contrast — perpetrator liable, prompt responder not — foreshadows the limit the Court of Appeal would draw the next year in Fiol v. Doellstedt between active wrongdoing and a nonharassing supervisor’s response to a complaint.

The harassment / hiring-discrimination distinction. The court’s most-quoted move distinguishes harassment from discrimination in hiring. “Unlike discrimination in hiring, the ultimate responsibility for which rests with the employer, sexual or other harassment perpetrated by a supervisor with the power to hire, fire and control the victimized employee’s working conditions is a particularly personal form of the type of discrimination which the Legislature sought to proscribe when it enacted the FEHA.” (Matthews, supra, 34 Cal.App.4th at pp. 605–606.) Personal liability for the harasser thus advances the Legislature’s aim that responsibility “be borne both by the offender as well as the employer who tolerates the offense.” (Id. at p. 606.) That framing — a supervisor with “hire/fire/control” power who personally harasses is individually answerable — is the doctrinal core that Matthews contributes.

The liberal-construction canon and legislative acquiescence. Two interpretive moves reinforced the holding. First, the court invoked the Legislature’s express command that FEHA be “‘construed liberally for the accomplishment of the purpose thereof,’” reasoning that confining liability to employers would cut against that mandate and the Act’s stated aim of “‘effective remedies.’” (Matthews, supra, 34 Cal.App.4th at pp. 604–605.) Second, it leaned on legislative acquiescence: “‘[t]he fact that the reference to “person” or “persons” survived several amendments to the FEHA’” showed the Legislature had not disturbed the Commission’s longstanding individual-liability construction, of which it was presumed aware. (Id. at pp. 604–605.) Together these supplied a textual and a structural ground, so the holding did not rest on policy alone.

Pleaded predicates and supporting case law. Applying the rule, the court held the complaint stated individual liability: Gonzales and Benitez “participated personally in acts which constituted an unlawful employment practice under section 12940, subdivision (h)(1)”; the remaining individual defendants “allegedly aided or abetted in the proscribed acts, in violation of section 12940, subdivision (g).” (Matthews, supra, 34 Cal.App.4th at p. 605.) The court reinforced its conclusion with “a considerable number of FEHA cases in which liability was imposed upon individuals who violated the act” — among them Rojo v. Kliger, Kelly-Zurian v. Wohl Shoe Co., Mogilefsky v. Superior Court, Accardi v. Superior Court, and Fisher v. San Pedro Peninsula Hospital — noting that in none “was it argued that the individual defendants should not be held personally liable,” the courts “appear[ing] to have assumed such liability.” (Id. at pp. 605–606.)

Significance

Matthews, decided alongside Page v. Superior Court, helped settle that harassers — including supervisors — face individual FEHA liability, while signaling the limit that became central later: harassment is distinct from the “personnel-management” and hiring decisions for which the employer alone answers. The very next year, Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318 read Matthews carefully, extending personal liability to a supervisor who “aided and abetted the harasser” while disavowing any suggestion in Matthews that “mere inaction” by a nonharassing supervisor would suffice. And the California Supreme Court later confirmed the boundary Matthews implied: in Reno v. Baird (1998) 18 Cal.4th 640 and Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, the Court held that individual supervisors are not personally liable for discrimination or retaliation under FEHA — even as harassers remain individually liable, a result the Legislature codified for harassment (Gov. Code, § 12940, subd. (j)(3)). Matthews thus sits at the headwaters of the individual-liability doctrine: it establishes the harasser/aider-and-abettor’s exposure and the harassment-versus-hiring distinction that the Supreme Court would later use to confine individual liability to harassment. Read it together with Fiol, Reno, and Jones for the current shape of the rule.

The decision also illustrates how a court reconciles statutory text, agency precedent, and analogous case law to reach a result the bare words leave ambiguous. Matthews did not announce a new theory of liability so much as ratify a construction the Commission had applied for over a decade and that the courts, in cases like Rojo v. Kliger, Kelly-Zurian v. Wohl Shoe Co., and Fisher v. San Pedro Peninsula Hospital, had silently assumed by entertaining suits against individual defendants. (Matthews, supra, 34 Cal.App.4th at pp. 605–606.) That methodology — treating an agency’s consistent, unrepudiated interpretation as persuasive evidence of legislative intent — recurs throughout FEHA jurisprudence and is itself a reason the opinion is cited. Finally, the gender-harassment dimension should not be overlooked: Matthews confirms that same-sex harassment of a heterosexual employee is actionable “‘harassment . . . because of sex,’” a point of continuing relevance to the scope of protected-status harassment claims. (Id. at p. 603.)

Key quotes

“[P]etitioner has alleged that his direct supervisors Gonzales and Benitez participated personally in acts which constituted an unlawful employment practice under section 12940, subdivision (h)(1). The other individual defendants are persons who allegedly aided or abetted in the proscribed acts, in violation of section 12940, subdivision (g).” (Matthews, supra, 34 Cal.App.4th at p. 605.)

“Unlike discrimination in hiring, the ultimate responsibility for which rests with the employer, sexual or other harassment perpetrated by a supervisor with the power to hire, fire and control the victimized employee’s working conditions is a particularly personal form of the type of discrimination which the Legislature sought to proscribe . . . .” (Id. at pp. 605–606.)

“Our holding that the responsibility for such acts must be borne both by the offender as well as the employer who tolerates the offense is consistent with the Legislature’s intent to provide ‘effective remedies which will eliminate such discriminatory practices.’” (Id. at p. 606.)

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Practice pointer

Open questions

By its terms Matthews resolved only individual liability for harassment, leaving the broader question of individual liability for discrimination and retaliation unaddressed — a gap the Supreme Court later filled against individual liability in Reno v. Baird and Jones v. The Lodge at Torrey Pines. The opinion also did not define the outer boundary of “aiding and abetting”: it held the non-harassing individual defendants could be liable as alleged aiders and abettors, but it did not delineate how much participation, encouragement, or tacit approval is required — the precise line later sharpened in Fiol v. Doellstedt, which held that “mere inaction” is not enough. (See Fiol, supra, 50 Cal.App.4th at pp. 1326–1327.) Finally, the disposition reached only the first through third causes of action (harassment, retaliation, constructive discharge); the writ did not extend to the fourth (disparate treatment), leaving the propriety of individual liability on a pure disparate-treatment theory for another day. (Matthews, supra, 34 Cal.App.4th at pp. 602, 606.)