California Court of Appeals clarifies standard for aiding and abetting harassment claim under the FEHA

On May 12, 2021, the Fourth District Court of Appeal in Smith v. BP Lubricants USA, Inc., affirmed in part the trial court's order sustaining defendants' demurrer to plaintiff's complaint. In Smith, plaintiff's employer, Jiffy Lube, held a seminar about a new product from BP Lubricants, which was led by a BP Lubricants salesperson. The salesperson directed remarks at plaintiff, a Jiffy Lube employee, that offended plaintiff and which he thought had a racial connotation. Plaintiff then brought suit against BP Lubricants and the salesperson for among other claims, aiding and abetting racial discrimination and harassment by his employer, Jiffy Lube, in violation of FEHA. BP Lubricants and the salesperson demurred, which the trial court sustained.

On appeal, plaintiff argued the trial court improperly sustained BP Lubricants and the salesperson's demurrer to his FEHA claim because he had sufficiently pled facts showing that they aided and abetted Jiffy Lube's harassment and discrimination against him. The Court of Appeal disagreed. The Court of Appeal noted that under FEHA, BP Lubricants and the salesperson could be found liable for aiding and abetting Jiffy Lube's discrimination and harassment of plaintiff only if: 1) Jiffy Lube subjected plaintiff to discrimination and harassment; 2) BP Lubricants and the salesperson knew Jiffy Lube's conduct violated FEHA, and 3) BP Lubricants and the salesperson gave Jiffy Lube "substantial assistance or encouragement" to violate FEHA. The Court of Appeal held that plaintiff could not meet the second and third elements as plaintiff had not pleaded any concerted activity between Jiffy Lube and defendants to commit FEHA violations, "which are the crux of an aiding and abetting claim," and could not, either at the trial court or on appeal, explain how he could amend his complaint to cure its deficiencies.