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Hirst v. City of Oceanside, 236 Cal. App. 4th 774, 187 Cal. Rptr. 3d 119 (2015)

Plaintiff was employed by an independent contractor performing on site services for Defendant employer, and has standing to sue employer under Fair Employment and Housing Act (“FEHA”) for sexual harassment committed by one of Defendant’s employees.

Plaintiff was employed as a phlebotomist by a private nursing company that contracts to provide services for local law enforcement agencies on an on-call basis. Plaintiff filed a lawsuit against the City of Oceanside under the California Fair Employment and Housing Act (“FEHA”) alleging that an Oceanside police officer sexually harassed her on several occasions while Plaintiff performed on-site services at the police department pursuant to her employer’s contract with the city. Plaintiff prevailed at trial and obtained a $1.5 million jury verdict, where the City moved for judgement notwithstanding the verdict on the ground that plaintiff lacked standing to use the city because she was not a city employee, not a person providing services pursuant to contract under California Government Code section 12940. The trial court denied the motion.

The Court of Appeals

The California Court of appeal affirmed, holding that Plaintiff had standing to sue the city. Government Code Section 12940(j) provides 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 contract. There was substantial evidence to support the jury’s finding that Plaintiff was a person providing services pursuant to a contract: 1) Plaintiff’s employer entered into a contract to perform services for the city; 2) Plaintiff exercised her own professional judgement in implementing the blood drawing services for the city; 3) Plaintiff used her own tools and equipment to perform the services; 4) there was no evidence that the police department had employment authority over her.

As such, the Court rejected the city’s argument that only Plaintiff’s employer, the nursing company, met this statutory definition because Plaintiff herself had not entered into any contract with the City. The Court therefore held it was unreasonable to conclude that the Legislature intended for Plaintiff’s employer to have standing to use but that Plaintiff, who actually performed the services pursuant to a contract and was therefore barred from recovery.

Employment based claims involving a large employer requires a law firm that is experienced, competent, and knowledgeable concerning the complexities of employment based classifications including bona-fide occupational qualifications (BFOQ). If you have any employment-related dispute and are considering suing your employer for discriminatory conduct contact the Orange County Employment Lawyers at Nassiri Law Group, practicing in Orange County, Riverside, and Los Angeles. Call (949) 375-4734.

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