Doctor/Medical Group Partner Who Complains About Sexual Harassment of Employees is Protected Against Retaliation

Protection from retaliation when an employee complains about or blows the whistle on sexual harassment, or other discriminatory conduct, is an important right for California employees. This right is found in the Fair Employment and Housing Act § 12940 (h).

Dr. Fitzsimons found out just how important this right was when she reported sexual harassment of employees of California Emergency Medical Physicians Medical Group (CEP), and found herself demoted. She sued, claiming retaliation.

CEP defended the case by claiming that Dr. Fitzsimons was a “partner” (one of 700 emergency physicians working for CEP and labeled as a partner) rather than an employee, entitled to the protection of FEHA. At trial, the jury found that Dr. Fitzsimons was a partner, and therefore, the trial court ruled against her.

Dr. Fitzsimons appealed claiming that, even if she was a partner, she still shouldn’t be retaliated against for reporting sexual harassment.

The Court of Appeals agreed, finding that since the statutory language said it protected “any person”, rather than just employees, it would thus protect partners against retaliation, as long as the partner was retaliated against for protesting conditions involving employees, here the sexual harassment of employees. Fitzsimons v. California Emergency Physicians Medical Group ___CA 4th___ (May 16, 2012).

Since many entities call those who really seem to be employees “partners,” this important case opens the door to an alternative theory of retaliatory termination. Retaliation plaintiffs, who may be considered partners, where the facts warrant it, should allege that they are employees and, in the alternative, are persons who complained about the rights of employees under the Fair Employment and Housing Act.

Jody I. LeWitter
June 6, 2012