Can a company you hired be liable for discrimination under FEHA?

Employers routinely outsource functions that FEHA regulates: pre-employment medical examinations, background screening, assessments. Raines addressed whether the outside company doing that work can itself be sued under FEHA.

The court held it can. FEHA's definition of employer includes any person acting as an agent of an employer, and the court read that to permit direct liability for a business-entity agent that has at least five employees and carries out activities regulated by the Act on the employer's behalf.

The claim in the case concerned a pre-employment medical screening that allegedly asked intrusive health questions unrelated to the job. The screening company argued it was not the employer; the court held that did not, by itself, put it outside FEHA.

For a small employer the consequence runs the other way from how it first reads. It does not transfer liability to the vendor — it adds a defendant. The employer remains responsible for what is done in its hiring process, and now shares that exposure with a company whose practices it may never have reviewed.