Short-takeway - Agent of employer on hook for asking illegal questions of job applicants (Raines v. US Healthworks)

 

Short Take-away:  Agent of employer who asked invasive questions as part of a pre-employment screening may be sued under California's FEHA

Responding to a question from the Ninth Circuit Court of Appeals, the California Supreme Court has held the agent of an employer may be sued under the Fair Housing and Employment Act (FEHA) when it acts on behalf of an employer and asks intrusive questions prohibited by law. (Raines v. US Healthworks (August 24, 2023) S273630.)  Questions from defendant US Healthworks Medical Group to potential employees of the hiring employer included:

. . . USHW required job applicants to complete a written health history questionnaire that included numerous health-related questions having no bearing on the applicant’s ability to perform job-related functions. According to plaintiffs, these questions covered details of the applicant’s health history including “whether the applicant has and/or has ever had: 1) venereal disease; 2) painful or irregular vaginal discharge or pain; 3) problems with menstrual periods; 4) irregular menstrual period; 5); penile discharge, prostate problems, genital pain or masses; 6) cancer; 7) mental illness; 8) HIV; 9) permanent disabilities; 10) painful/frequent urination; 11) hair loss; 12) hemorrhoids; 13) diarrhea; 14) black stool; 15) constipation; 16) tumors; 17) organ transplant; 18) stroke; or 19) a history of tobacco or alcohol use.” In addition, the questionnaire asked whether the job applicant was pregnant, sought information regarding medications taken, and required the job applicant to disclose prior job-related injuries and illnesses. (Id., pp. 2-3.)

Justice Jenkins wrote for a unanimous court, which held that instead of the rules of common-law agency, the relevant and applicable authority was Government Code section 12940 of the FEHA.  This section provides that "[e]mployer’ includes. . .  any person. .  acting as an agent of an employer. . . ."

The Supreme Court  explained this result is supported by public policy because it makes liable the entity who (allegedly) violated FEHA, and indeed, the entity who no doubt drafted the offensive questionnaire:

If a business entity contracts with an employer to provide services that will affect that employer’s employees, and if, in providing those services, the business-entity agent violates FEHA’s antidiscrimination policies, causing injury to the employer’s employees, it is consistent with sound public policy to treat the business entity as an employer of the injured employees for purposes of applying the FEHA. This interpretation imposes FEHA liability not only on the employer but also extends it to the entity that is most directly responsible for the FEHA violation. (Id., p. 27.)

As a final comment, it is difficult to understand how US Healthworks could even consider asking such improper questions, such as whether female employees are pregnant, and not run afoul of California law.  The idea that US Healthworks may escape liability by claiming they are merely an agent of the employer seems to border on subterfuge, and, indeed may appear to be an attempt by the hiring employer and its agent to evade rules forbidding employers from asking questions that clearly violate California law.

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