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New California Law Permits Co-Workers to Sue One Another for Workplace Harassment

November 12, 2000

A recent amendment to California's Fair Employment and Housing Act ("FEHA"), effective on January 1, 2001, will permit co-workers to sue one another personally for unlawful harassment in the workplace. While the substantive definition of harassment remains unchanged under this new measure (entitled A.B. 1856), the scope of FEHA is enlarged to provide this additional avenue of redress to employees subjected to co-worker harassment. The new law covers harassment based on all protected categories under FEHA. However, the law does not include the employees of nonprofit corporations or religious organizations. As discussed below, permitting employees to sue co-workers for harassment may prove vexing to employers.

A.B. 1856 overturns the decision of the California Supreme Court in Carrisales v. Department of Corrections, 21 Cal.4th 1132 (1999), in which the Court ruled that FEHA does not apply to actions for sexual harassment between co-workers. Under Carrisales, discussed on this website in Individual Liability for Employment Discrimination in New York and California (December, 1999), if an employee's complaint of harassment by a co-worker was followed by immediate and appropriate corrective action on the part of the employer, the employer was shielded from liability under FEHA, and the aggrieved employee was limited to the pursuit of injunctive or tort remedies for redress against the harassing co-worker.

Of course, tort remedies, such as assault, battery, defamation and intentional infliction of emotional distress have elevated standards of proof, making it difficult for an employee to obtain damages for harassment by co-workers. A.B. 1856 is intended to further the legislative purpose of FEHA by holding errant employees personally liable for workplace harassment. Accordingly, co-workers will now be held personally liable for unlawful harassment, regardless of whether the employer knows or should have known of the conduct and regardless of whether the employer fails take immediate corrective action.

Potential problems arising from this new legislation loom for employers. First, it seems unlikely that that claims between employees and co-workers will proceed very far without either or both parties seeking to join the employer or its representatives, either as parties or witnesses. A second problem expected to result from this new law is that employers may find that conducting effective investigations of harassment complaints is complicated by co-worker lawsuits. Indeed, California law requires that employers initiate immediate and appropriate corrective action for any alleged harassment, yet an employee threatened with a lawsuit by a co-worker may prove resistant to cooperation in any investigation conducted by the employer.

Third, employees sued along with their employers may very well seek to assert defenses different than those asserted by the employer. Such a scenario could pit the interests of the employer against the employee. In addition, any future personnel action taken against such an employee may result in allegations of retaliation. Finally, and most importantly, suits by and against co-workers seems certain to negatively affect the workplace.

Accordingly, while all of the implications of this legislation remain to be seen, it is clear that the new law could significantly alter the relationships between employees, co-workers and employers and have an unintended deleterious affect on the work environment.