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 hadsexually 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.