Generally, a partner does not have the right to sue his/her
partnership for discrimination, harassment, or retaliation under Title VII or
the California Fair Employment and Housing Act (“FEHA”). This is because a
partner is not in an employment relationship with the partnership. However, the
California Court of Appeals recently held in Fitzsimons v. California
Emergency Physicians Medical Group, 205 Cal.App.4th 1423 that if a partner
alleges that the partnership is retaliating against the partner because he/she
complained about unlawful discrimination or harassment of the partnership’s
employees; the partner has the right to sue under FEHA.
In Fitzsimons, Mary Fitzsimons, a partner of the
California Emergency Physicians (“CEP”) and an emergency physician filed suit
against CEP alleging that she had been terminated in retaliation for reports
she made to her supervisors that certain officers and agents of CEP had
sexually harassed female employees. Initially, the trial court found in favor
of CEP based on the grounds that a partner does not have standing to assert a
claim under FEHA.
Fitzsimons appealed and the Court of Appeals reversed the trial
court’s judgment. In finding that Fitzsimons could bring an action under FEHA
for retaliation, the court reasoned that FEHA makes it unlawful for CEP to
retaliate against any “person” for opposing harassment and the term” person in
this context included a partner. The court did caution, however, that the
general rule still stands – a partner cannot sue the partnership for harassment
or discrimination directed at the partner herself/himself.
The Fitzsimons decision means that in contrast to Federal
law, under California law partnerships face potential liability for retaliation
against partners who report discrimination or harassment against employees.
This Court decision has answered many questions that lawyers,
employees, and employers have regarding a partner’s right to sue. California
partnerships should review their anti-retaliation policies and provide training
on such policies.
information and to determine whether you have a potential claim please contact
Quintilone & Associates at 949.458.9675 or