By: James Kachmar

On May 16, 2012, a California Appellate Court issued its ruling in Fitzsimons v. California Emergency Physicians Medical Group and held that a partner could state a claim for unlawful retaliation against her partnership under the California Fair Employment and Housing Act (“FEHA”). 

The defendant medical group (“CEP”) was a California general partnership with approximately 700 partners, including plaintiff. Plaintiff claimed that she was demoted and retaliated against for complaining that several CEP “officers and agents” had sexually harassed female employees of CEP’s management and billing subsidiaries. After the first phase of a jury trial, the jury determined that plaintiff was a partner and not an employee of CEP. The trial court dismissed her FEHA claim against CEP, holding that FEHA did not apply to retaliation claims brought by a partner against the partnership because a partner was “not in an employer-employee relationship.”

The appellate court concluded that the trial court erred and reversed its ruling. The Court reasoned that the employees who were sexually harassed were employed by CEP and that FEHA “makes it an unlawful practice for CEP to retaliate against ‘any person’ for opposing that harassment.” (The Court noted that FEHA’s Federal counterpart, Title VII of the Civil Rights Act, was much narrower in that it uses the term “employee” instead of the broader terms, “any person”.)

The Court observed that, while the partner may not be able to state a FEHA claim for harassment directed at her, she was protected under FEHA for reporting harassment of employees of CEP. In fact, the Court held that, given that FEHA is intended to protect a civil right in seeking and obtaining employment, “the court must construe FEHA broadly, not … restrictively.” The Court further concluded that allowing plaintiff’s FEHA claim to continue would further FEHA’s policy of protecting employees from unlawful harassment in the workplace.

In light of the Fitzsimons ruling, partnerships need to remain vigilant about possible unlawful retaliation claims being brought not only by their employees, but also by their fellow partners. Seeking legal advice and acting quickly to investigate claims of harassment and/or retaliation can help reduce the likelihood and severity of potential FEHA claims.