Wednesday, October 7, 2026

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Court of Appeal:

Employer Not Strictly Liable for All Supervisor Harassment

Justices Say 2003 California Supreme Court Opinion Doesn’t Apply Where Alleged Sexual Misconduct Is Committed by Person Who Is in a Managerial Role but Victim Is Not Under the Control of the Perpetrator

By a MetNews Staff Writer

The rule declared by the California Supreme Court in 2003 that employers are strictly liable for harassment of an employee by a supervisor does not apply where the plaintiff was not under the direct control of the person accused of the misconduct, the Court of Appeal for this district has held.

Acting Presiding Justice Armen Tamzarian authored the opinion, filed Monday. It affirms a summary judgment granted by Los Angeles Superior Court Judge Tony L. Richardson in favor of Wells Fargo Bank in a sexual harassment action brought by “Jane Doe” under the Fair Employment and Housing Act (“FEHA”).

Richardson found that the rule set forth by the state high court in State Department of Health Services v. Superior Court of strict liability for sexual harassment did not pertain given that the alleged attacker, Eric Pagel, even if he was a supervisor, did not supervise Doe. He also determined that there was no negligence on the part of the bank because it took corrective action immediately upon learning of the purported rape of Doe.

2003 Opinion

The Supreme Court said in its 2003 opinion, by Justice Joyce Kennard (now deceased):

“The FEHA imposes two standards of employer liability for sexual harassment, depending on whether the person engaging in the harassment is the victim’s supervisor or a nonsupervisory coemployee. The employer is liable for harassment by a nonsupervisory employee only if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action….This is a negligence standard.”

Kennard reasoned that because the FEHA, in Government Code §12940(j)(1), “imposes this negligence standard only for harassment ‘by an employee other than an agent or supervisor’ ” by implication the FEHA makes the employer strictly liable for harassment by a supervisor.”

Appellant’s Contention

Under that standard, Doe argued on appeal, “the harasser need only be a supervisor, not the plaintiff’s supervisor, for the employer to be vicariously liable for the supervisor’s harassment.”

She set forth in her opening brief, signed by San Diego attorney Benjamin I. Siminou:

“Here, the trial court found that the term ‘supervisor’ was restricted to those who exercised direct authority over the plaintiff….

“But no California court has so held. In fact, there are no published decisions even addressing whether the term ‘supervisor’ includes those who have supervisory authority over any employee, or only those who have supervisory authority over the plaintiff.”

Richardson’s interpretation should be rejected, Doe maintained, because “the statute does not restrict that term to one who directly supervises the employee subjected to harassment,” the Fair Employment and Housing Council has broadly interpreted the word “supervisor,” and other jurisdictions, under the same circumstance, have construed the term in an expansive manner.

Tamzarian’s Opinion

Tamzarian said the statute could be read either as Doe or as Wells Fargo urges, legislative history does not point one way or the other, and the case appears to be one of first impression.

He wrote that while the FEHA “must be ‘construed liberally to accomplish its purposes,” as proclaimed in Health Services, “liberally construing the FEHA does not mean interpreting it in a manner that would lead to arbitrary results disconnected with the purposes of the statutory scheme.” The jurist elaborated:

“If we were to adopt plaintiffs position, an employer would be strictly liable for a mid-level manager’s sexual harassment of her own boss. Likewise, because ‘supervisor’ is defined broadly, an employer would be strictly liable for the harassment of a high-level employee by a relatively low-level supervisor (e.g., a shop foreman or assistant manager harasses an executive). The alleged harassers are not acting as ‘supervisors’ in these scenarios.”

Work-Related Conduct

Tamzarian went on to say:

“Whether an alleged harasser is the plaintiff’s supervisor is also relevant in determining whether the harasser’s conduct is work related….

“….An employer can only be strictly liable for sexual harassment by a supervisor if the harasser is the plaintiff’s supervisor acting in the capacity of a supervisor when the harassment occurs.

“To be clear, we are not holding that an employer can only be strictly liable for sexual harassment by the plaintiff’s direct or immediate supervisor or a supervisor successively higher in the employer’s hierarchy. The broad definition of supervisor stated in section 12926, subdivision (t) makes others, too, the plaintiff’s supervisor. But where, as here, the alleged harasser is not the plaintiff’s supervisor and only supervises other employees, strict liability does not apply.”

The case is Doe v. Wells Fargo Bank, N.A., 2026 S.O.S. 3172.

Siminou was joined in representing Doe by Ronald L. Zambrano and Crystal F. Mohsin of the Los Angeles firm of West Coast Employment Lawyers, APLC. Acting for Well Fargo were Erin J. Cox of the Los Angeles office of Munger, Tolles & Olson and Malcolm A. Heinicke, and Aditi Ghatlia of its San Francisco location.