Doe v. Capital Cities
In Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, the appellate court noted that the FEHA did not contain a definition of the term supervisor.
That court looked to the dictionary definition of the term, the National Labor Relations Act (29 U.S.C. 152(11)), and the California Agricultural Labor Relations Act (Lab. Code, 1140.4, subd. (j)).
The Capital Cities court noted that under the definitions of supervisor contained in these three sources, a supervisor included one who had the authority to direct others and/or to assign duties to others, as well as one who has plenary authority to hire or fire other employees. ( Doe v. Capital Cities, supra, 50 Cal.App.4th at pp. 1046-1047.)
Thus, the adoption of section 12926, subdivision (j), appears merely to clarify the definition of the term "supervisor."
A statute that simply clarifies or codifies existing case law is properly applied to transactions predating its enactment. ( Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243, 933 P.2d 507.)
The court commented that "characterizing the employment status of the harasser is very significant." ( Id. at p. 1046, 58 Cal. Rptr. 2d 122.) "An employer's liability under FEHA for an act of sexual harassment committed by a supervisor or agent is broader than the liability created by the common law principle of respondeat superior . . . ." ( Id. at p. 1048, 58 Cal. Rptr. 2d 122.)
Section 12940 "has been interpreted to mean that the employer is strictly liable for the harassing actions of its supervisors and agents citations, but that the employer is only liable for harassment by a coworker if the employer knew or should have known of the conduct and failed to take immediate corrective action." ( Id. at p. 1046, 58 Cal. Rptr. 2d 122.)