Kim v. Konad USA: Exhaustion of FEHA Remedies Need Not Be Proven at Trial

In Kim v. Konad USA Distribution, Inc. (June 12, 2014) --- Cal.App.4th ---, the plaintiff prevailed in a bench trial on claims of quid pro quo sexual harassment, hostile work environment harassment, and wrongful termination. After trial, the defendants objected to the court's statement of decision, arguing that the court lacked subject matter jurisdiction because the plaintiff had failed to prove that she exhausted her remedies under FEHA and that the defendant had at least fie employees at the time of the alleged acts. The trial court entered judgment, and the defendants appealed.

The Court of Appeal affirmed, holding as follows:

Exhaustion of administrative remedies does not affect the fundamental subject matter jurisdiction of the trial court. Further, the defendants forfeited any right to a judgment of dismissal on the FEHA causes of action by failing to request dismissal of the FEHA causes of action before submitting the matter for decision. Slip op. at 12-13.

Although FEHA applies only to employers with five or more employees, a sexual harassment plaintiff need not prove that the defendant had five or more employees in order to prevail on a claim for wrongful termination in violation of public policy. Slip op. at 14-17. 

Even if the employee references FEHA as one source of the public policy at issue, the employer need not have five or more employees because "all employers (not just those with five or more employees) accused of harassment (based on sex or some other classification listed in Gov. Code, § 12940, subd. (j)(1)) are subject to a FEHA harassment claim." Slip op. at 16. Further, the plaintiff here based her claim on policies found in both FEHA and the California Constitution. Ibid.

Finally, the individual defendant could not be held liable for wrongful termination because he was not the plaintiff's employer. Slip op. at 17-18.

The opinion is available here.