The Supreme Court today said it would decide for the Ninth Circuit, “Does California’s Fair Employment and Housing Act, which defines ‘employer’ to include ‘any person acting as an agent of an employer,’ Cal. Gov’t Code § 12926(d), permit a business entity acting as an agent of an employer to be held directly liable for employment discrimination?” (Emphasis and link added.) The case is Raines v. U.S. Healthworks Medical Group.

According to the Ninth Circuit’s order, the question arises in a putative class action “seek[ing] to hold defendants, providers of pre-employment medical screenings, liable for asking allegedly invasive and impermissible questions during medical screening exams.” A district court dismissed the plaintiffs’ complaint. The appeals court heard oral argument in January and asked for the Supreme Court’s help last month.

The Ninth Circuit said it’s uncertain whether a business entity is exposed to discrimination liability because two past Supreme Court decisions “exempt individuals acting as agents of an employer from liability, but neither addresses the issue before us.”

The Supreme Court has now granted 13 of the last 14 Ninth Circuit requests for help in resolving questions of California law, dating back to July 2018.  The lone denial during that time was in October 2019.

Three other requests remain pending, including one the Ninth Circuit submitted more than two weeks before Raines. (See here, here, and here.)

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Rule 8.548

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