A Warning to California Partnerships: Partners May Sue Their Partnership for Retaliation Under FEHA

California’s Fair Employment and Housing Act (“FEHA”) prohibits members of a partnership from sexually harassing and retaliating against its employees for reporting or opposing sexual harassment, but does not protect individual partners from sexual harassment. Partners are not protected because FEHA only prohibits employment discrimination, and partners are not in an employer-employee relationship with the partnership. However, an open question under FEHA was whether a partner could bring a retaliation claim against the partnership when the partner opposed the sexual harassment of the partnership’s employees.

A recent opinion of the Court of Appeals answers that question in the affirmative. In Fitzsimons v. California Emergency Physicians Medical Group, the Court ruled that partners have standing to sue their partnership for retaliation under FEHA where the partner is terminated for opposing the sexual harassment of employees.

Case Summary
Plaintiff Mary Fitzsimons was a partner with California Emergency Physicians Medical Group (“CEP”). Plaintiff was removed from her position as regional director and filed suit alleging that CEP removed her in retaliation for reports she made that officers and agents of CEP had sexually harassed female employees of CEP’s management and billing subsidiaries. The trial court entered judgment in favor of CEP, holding that FEHA does not apply to retaliation by a partnership against a partner because partners are not in an employer-employee relationship.

The Court of Appeal reversed. In doing so, the Court found that the plain language of FEHA bars partnerships from retaliating against any person, including a partner, who opposes or reports the sexual harassment of an employee. However, the Court made it clear that upholding plaintiff’s claim “does not imply that a partner would have standing to assert a valid claim for harassment or discrimination against himself or herself by the partnership.”

What This Means for Employers
California partnerships face liability for retaliating against a partner who reports or opposes the sexual harassment of a partnership employee. Accordingly, a partnership would be wise to review its current anti-retaliation policies, make any changes necessary to ensure that those policies are clear, and train all partners and managers regarding the coverage of those policies.