In 2003, the California Legislature amended the California Fair Employment and Housing Act to state that employers are potentially liable when third party nonemployees—such as customers or clients—sexually harass their employees. Prior to the amendment, the language of the FEHA seemed to impose liability on an employer only when the harassment was committed by the employer or one of its employees.
But now, the California Supreme Court has ruled that the FEHA was always intended to hold employers liable whether the harassment was by an employee or nonemployee, even before the amendment. Thus, the 2003 amendment, said the court, merely restated and clarified law that already existed.
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In so holding, the court ruled that the 2003 amendment applied retroactively to a case that was filed before the amendment was enacted by the Legislature. The case involved Helga Carter, a nurse at the California Department of Veterans Affairs. Carter claimed she was sexually harassed by an elderly male patient, and that despite her complaints, the department failed to take effective steps to end the harassment.
A trial court ruled in Carter’s favor, awarding her $184,000 in damages. The department appealed, and the appeals court reversed the judgment, finding that an employer cannot be held liable for harassment by nonemployees. Now, as a result of the high court’s decision, the trial court judgment for Carter will be reinstated.
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