Amici Curiae urge rehearing en banc because the Ninth Circuit decision wholly misconstrues the language of California’s Fair Employment and Housing Act, California Government Code §12900 et seq. ("FEHA"), rulings of the California courts, and regulations of the Fair Employment and Housing Commission ("FEHC"). In holding that the affirmative defense in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) ("Faragher/Ellerth") applies to FEHA harassment cases, the Kohler panel alters state law in an area properly left to the California legislature and creates a serious conflict between federal and state court interpretations of the liability employers face for supervisory harassment. If the decision is allowed to stand, the federal court would diverge from unanimous state court decisions and administrative regulations, with the result that employer liability will turn on forum selection rather than legal principle.



The Kohler panel’s conclusion that the California Supreme Court would apply the Faragher/Ellerth affirmative defense in FEHA cases for supervisory harassment is contrary to Carrisales v. Department of Corrections, 21 Cal.4th 1132, 1136-1137 (1999), where a unanimous California Supreme Court recognized that:

Section 19240(h)(1) makes the employer strictly liable for harassment by an agent or supervisor, but liable for harassment by others only if the employer fails to take immediate and appropriate corrective action when reasonably made aware of the conduct.

The only reasonable reading of this statement by the Supreme Court is that the employer’s corrective action is not a defense to supervisory harassment. Carrisales, decided after Faragher and Ellerth, is consistent with ten years of California court of appeal decisions regarding strict liability for supervisory harassment. See, e.g., Murillo v. Rite Stuff Foods, Inc., 65 Cal.App.4th 833, 842 (1998) and Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128, 1146 (1998) and cases cited therein.

The panel holds that "strict liability" is no different from "vicarious liability" in harassment cases, relying only upon a few federal jurisdictions that have inadvertently confused the concepts of strict and vicarious liability, but citing no California authority on this point. Kohler, supra, 244 F.3d at 1176-1178.

Unlike Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C., § 2000e et seq.) ("Title VII"), FEHA draws a clear distinction between liability for acts by supervisors and those of non-supervisors. Section 12940(j)(1) holds employers liable for the acts of someone who is not a supervisor if the employer "knows or should have known" of the harassment and "fails to take immediate and appropriate corrective action." By omitting the same rule of fault for harassment by supervisors, the legislature has expressed its intent to create two different standards depending on who perpetrates the harassment. Because the intent to impose no-fault or strict liability for supervisory harassment is clear from the plain meaning of FEHA, "no court need, or should, go beyond that pure expression of legislative intent." Kobzoff v. Los Angeles County Harbor/UCLA Medical Center, 19 Cal.4th 851, 861 (1998). California’s administrative regulations interpreting FEHA, originally adopted in 1980, confirm this interpretation. Compare Cal. Code Regs., tit. 2 §7287.6(b)(3) (harassment by persons other than agents or supervisors unlawful when the employer fails to take "immediate and appropriate corrective action") with Cal. Code Regs., tit. 2 §7287.6(b)(2) (harassment by agents or supervisors unlawful without regard to the employer’s corrective action).

An examination of FEHA’s harassment provisions demonstrates that the California legislature created a unique and comprehensive scheme for harassment claims, and that it has continually expanded protections in that area: coverage regardless of the number of employees, coverage of independent contractors as well as employees subjected to harassment, individual liability for harassing supervisors and co-workers, and clearly articulated statutory requirements that employers engage in preventive and remedial action regarding harassment. The California Supreme Court has recognized that under FEHA there is a difference between the treatment of harassment and other types of state law discrimination claims. Carrisales, supra, 21 Cal.4th at 1137; Reno v. Baird, 18 Cal. 4th 640, 644-645 (1998).

The Kohler panel overlooks this unique status afforded harassment claims under California law and misreads the distinctions between Title VII and FEHA. It thereby rejects the settled precept that California does not follow federal anti-discrimination law when there are statutory differences between the two schemes, and when state law provides greater protections. Romano v. Rockwell Internat., Inc., 14 Cal.4th 479, 498 (1996). As one California appellate court recently noted:

We recognize that to the extent that the statutory language of FEHA is ambiguous, California courts often rely on federal cases interpreting title VII, which resembles FEHA in many respects. [Citations omitted]; However, in some respects FEHA may go farther than title VII in offering protection against sexual harassment. [Citation omitted.]

Valdez v. Clayton Industries, No. B139582, 2001 Cal. App. LEXIS 337 *at 13-14 (Cal. Ct. App. May 8, 2001).

The Kohler analysis defies logic when it concludes that FEHA’s many affirmative obligations on employers support the use of the affirmative defense in state law actions. Id. at 1173-1174. Kohler ignores the FEHA requirement that the Act be interpreted liberally (§ 12993) and be construed to "safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination…" (§ 12920). Robinson v. Fair Employment and Housing Com., 2 Cal.4th 226, 233 (1992). Instead, the Kohler court contravenes this FEHA mandate and narrowly interprets the Act to excuse harassing conduct.

Nothing in the statute supports the use of employers’ broad remedial obligations as a defense to employer liability. In fact, the only references in the harassment provisions to an employer shielding itself from liability preclude use of the preventive and remedial obligations as a defense. Section 12950 requires employers to take preventive measures regarding sexual harassment, but specifically states that "an employer’s compliance with this section does not insulate the employer from liability for sexual harassment." (Emphasis added.) Similarly, Cal. Code Regs. Tit. 2, § 7287.6(b)(4) provides that a worker harassed "by a co-employee should inform the employer or other covered entity of the aggrievement; however, an employee’s failure to give such notice is not an affirmative defense."(Emphasis added.) If an employee’s failure to complain about the harassment (action falling within the second prong of the Faragher/Ellerth affirmative defense) cannot serve as a defense to co-worker harassment under FEHA, then it certainly is not intended to be an affirmative defense to strict liability for supervisory harassment.


Where the legislature wishes to enumerate defenses to FEHA, it does so. Examples of defenses found in the statute include § 12940(a)(1) and (a)(2) (defense to physical and mental disability discrimination claims and medical condition claims where the applicant or employee is unable to perform essential job duties even with reasonable accommodations, or cannot perform those duties without endangering self or others); § 12940(a)(3)(A) and (B) (defenses to marital status discrimination claims); § 12940(l) ("undue hardship" defense to religious accommodation claims); § 12940(m) ("undue hardship" defense to physical and mental disability accommodation claims); § 12942(a), (b) and (c) (defenses for age discrimination claim involving compulsory retirement); § 12945.2(r) (defense to refusal to reinstate if employee considered a key employee following family or medical leave); and § 12947.5(b) and (c) (defenses to general prohibition against sex-based refusals to allow employees to wear pants in the workplace).

Subsequent to the 1998 Faragher and Ellerth decisions, the legislature has amended § 12940(j); however, it clearly has not altered the strict liability rule or in any way imported into FEHA the Faragher/Ellerth affirmative defense. It is well settled that "the Legislature is deemed to be aware of existing laws and judicial decisions in effect at the time legislation is enacted and to have enacted and amended statutes in ‘the light of such decisions as have a direct bearing upon them.’" People v. Overstreet, 42 Cal. 3d 891, 897 (1986) (citation omitted). There is no affirmative defense to supervisory harassment in FEHA, and if this fundamental policy change in harassment law is made, it is a matter for the California legislature, not for the federal courts.


The Ninth Circuit should decide this case consistent with state laws and regulations to provide California employees and employers with clear and consistent guidance about their respective legal rights and obligations.

Dated: May 24, 2001 Respectfully submitted,

Joseph Grodin



Marci Seville

Donna Ryu



Judith E. Kurtz

Attorneys for Amici Curiae

The Impact Fund

Equal Rights Advocates

Women’s Employment Rights Clinic of

Golden Gate University School of Law

Asian Law Caucus

Lawyers’ Committee for Civil Rights of the

San Francisco Bay Area