Hirst v. City of Oceanside: Court Examines Scope of FEHA Harassment Protection for Persons Providing Contract Services

In Hirst v. City of Oceanside (5/8/15) --- Cal.App.4th ---, the plaintiff, Kimberli Hirst, worked as a phlebotomist for American Forensic Nurses, Inc. (AFN). AFN contracted with San Diego County to provide phlebotomy services for local law enforcement agencies, including the Oceanside Police Department (OPD).

Hirst sued the City of Oceanside under FEHA, alleging that an OPD officer sexually harassed her while she was providing phlebotomy services to OPD under AFN's contract with the County. Hirst prevailed at trial, and the City moved for judgment notwithstanding the verdict, arguing that Hirst lacked standing to bring a FEHA claim against the City. The trial court denied the motion, and the City appealed. The Court of Appeal affirmed, holding that Hirst had standing to sue as a "person providing services pursuant to a contract." The Court reasoned as follows:

At the relevant time, Government Code section 12940(j) provided that an employer may be held liable for its employee's harassment of an "employee, an applicant, or a person providing services pursuant to a contract." [In 2014, the Legislature broadened this provision to encompass interns and volunteers as well.] Section 12940(j)(5) defines "a person providing services pursuant to a contract" as one who (1) "has the right to control the performance of the contract for services and discretion as to the manner of performance"; (2) "is customarily engaged in an independently established business"; and (3) "has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer's work."

Hirst met all three of these requirements. First, she exercised professional judgment in implementing the blood drawing services. Although law enforcement officers secured the environment in which she worked, they did not exercise authority over her in any other manner. Second, she was engaged in the profession of a phlebotomist, which was not a usual part of the City's public duties. Third, she brought her own equipment to provide these services and did not use the City's property or rely on its expertise.

Interestingly, Hirst apparently did not argue at trial that she was a "person providing services pursuant to a contract." Instead, she argued that AFN was such a person, and that she was protected as AFN's employee. The City did not deny that AFN was such a person, but argued that FEHA protection did not extend to AFN's employees. The Court rejected this argument, holding that the Legislature could not have intended to cover a business entity such as AFN, but not the people through whom such an entity provides contractual services.

The opinion is available here.