Farmers Insurance Group v. County of Santa Clara

906 P.2d 440, 11 Cal. 4th 992, 47 Cal. Rptr. 2d 478, 95 Cal. Daily Op. Serv. 9298, 95 Daily Journal DAR 16145, 11 I.E.R. Cas. (BNA) 1256, 1995 Cal. LEXIS 6796, 69 Fair Empl. Prac. Cas. (BNA) 1120

• Court: California Supreme Court
• Decided: December 6, 1995
• Docket: S041795
• Status: Published

Opinions

Opinion

BAXTER, J.

This case presents the issue whether, under the Tort Claims Act (Gov. Code, §§ 825-825.6, 995-996.6), the County of Santa Clara (the County) must indemnify one of its deputy sheriffs and pay his costs for defending against a sexual harassment lawsuit where the evidence is undisputed that the deputy sheriff lewdly propositioned and offensively touched other deputy sheriffs working at the county jail. We conclude the answer is no. Under the Tort Claims Act, a public entity is required to pay claims and defense costs arising out of a civil lawsuit only where the employee proves that the act or omission giving rise to an injury occurred in “the scope of his or her employment as an employee of the public entity.” (Gov. Code, §§ 825, subd. (a), 825.2, subd. (b), 995; see Gov. Code, § 995.2.) Since the deliberate targeting of an individual employee by another employee for inappropriate touching and requests for sexual favors is not a risk that may fairly be regarded as typical of or broadly incidental to the operation of a county jail, such conduct must be deemed to fall outside the scope of a deputy sheriff’s employment. Consequently, the County is not obligated to indemnify the sexual harasser or his private insurer. We therefore reverse the contrary judgment of the Court of Appeal, and remand the matter with directions to vacate the judgment and to enter judgment in favor of the County.

I. Factual and Procedural Background

In 1980, the County promulgated a policy prohibiting sexual harassment in the workplace. At the time of the events underlying this action, the policy provided in pertinent part: “[S]exual harassment constitutes sex discrimination which is prohibited. [^Q Sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: FID 1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; FU 2. Submission to or rejection of such conduct by an individual is used or is threatened to be used as the basis for employment decisions affecting such individual, or; [D 3. Such conduct has the purpose or effect of interfering with any individual’s work performance or creating an intimidating, hostile, or offensive working environment.” The Santa Clara County Sheriff’s Department distributed this written policy to its employees and instructed them to study it. The policy was then discussed with employees.

In 1981, the County hired Cynthia Bates and Toni Daugherty as deputy sheriffs in the sheriff’s department.

Between April 1983 and December 1983, Bates and Deputy Sheriff Craig Nelson worked in the North County jail. While there, Nelson made lewd, suggestive and sexually offensive comments to Bates. He asked her about her sex life and made repeated comments about oral sex. Nelson also touched Bates on her legs and thighs.

Between February and June 1984, Bates and Nelson worked in the main jail together. Nelson, who was Bates’s “training officer” during this time, was responsible for evaluating Bates’s progress as a trainee and for informing his supervisors when he thought she was completely trained. At the main jail, Nelson exhibited the following conduct toward Bates: (1) he would stick out his tongue, make gestures with it and say that he “was good at eating pussy and that he knows [Bates] would enjoy it”; (2) he would come up behind Bates and whisper that he would like to take her “to the hot tubs and eat pussy and he’d love to find out what it was like if [Bates] gave him a blow job with [her] braces on”; (3) he commented that he would like to “butt fuck [another female deputy sheriff] and then pull out and come all over her face”; and (4) he told Bates: “I bet you’d like me to fuck you in the butt, I’d bet you’d love that.” Nelson also touched Bates on the back and front of her thighs three or more times. On several occasions he told Bates that in order to “get off training,” she would have to “give him head.” Nelson has admitted that he did and said these things.

Also in 1984, Nelson grabbed or slapped Toni Daugherty on the buttocks. Daugherty objected immediately when Nelson touched her, and he did not touch her again. Nelson called Daugherty the next day and asked about the “red marks [he] put on [her] ass.” After Daugherty reported Nelson’s behavior and the sheriff’s department began an internal investigation, she began receiving obscene phone calls at home from Nelson.

When Bates and Daugherty reported Nelson’s conduct to a captain in the sheriff’s department, he instructed them to report the incidents to the internal affairs division.

Another deputy sheriff, Zana Murphy, later reported that Nelson had made lewd and sexually suggestive comments to her as well. In particular, Nelson had discussed oral sex and sodomy with Murphy and wanted to know if she was a “swallower or a spitter.”

After interviewing witnesses, an investigator at the sheriff’s department submitted a detailed report which sustained the allegations of sexual harassment against Nelson. Based on this report, the sheriff’s department suspended Nelson without pay for 14 days. Nelson appealed the discipline pursuant to a collective bargaining agreement, and an arbitrator reduced the suspension to two days.

Additionally, the female deputies complained about alleged harassment by Sergeant David Pascual. They also charged that Lieutenants Larry Kelly and Ernie Ruch and others failed to act timely in investigating the complaints or in taking remedial action to halt the harassment. The County investigated these allegations and concluded there was insufficient evidence to support them.

In 1987, Bates, Daugherty and Murphy sued Nelson, the County and others in the federal district court in San Francisco, alleging, among other things, that Nelson had sexually harassed them in violation of title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e-2) and the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940, subd. (h)). After being served in the federal action, Nelson requested the County to defend and indemnify him pursuant to sections 825 and 995 of the Government Code. The County refused, taking the position that Nelson acted outside the scope of employment when sexually harassing the three deputies.

Nelson was able to obtain counsel paid for by his homeowners insurance carrier, Farmers Insurance Group (Farmers).¹

Shortly before trial in the federal action, the federal district court dismissed Murphy’s claims against Nelson as time-barred. On the date set for trial, Nelson settled with Bates and Daugherty for $150,000 and was dismissed from the action. The district court, on Nelson’s motion and without objection .by the County, found that the settlement was made in good faith pursuant to Code of Civil Procedure section 877.6. The settlement amount was paid by Farmers.

The sexual harassment claims against the County and the other individual defendants proceeded to a jury trial, and the jury received instructions on the legal standards applicable to employer liability under FEHA and those applicable to constructive discharge.² No instructions pertaining to the doctrine of respondeat superior or vicarious liability were given. The jury was directed to award damages, if any, separately against the County and the remaining individual defendants.

The jury found in favor of the female deputies. On the verdict form, the jury answered yes to a question asking if “any plaintiff’ was “a victim of sexual discrimination, sexual harassment, or retaliation in violation of California Government Code § 12,940 [szc]?” The jury also specified on the verdict form that the County had constructively discharged Bates. The jury awarded damages against the County in the amount of $400,000 to Bates, $183,000 to Daugherty and $1.6 million to Murphy.³

In June 1991, after their government claims were rejected, Farmers and Nelson filed the instant action seeking indemnity from the County and others for the amount Farmers had paid in settlement and in defense of the federal action. The parties filed cross-motions for summary judgment or summary adjudication, directed primarily to the issue of whether Nelson was acting within the scope of his employment when he sexually harassed the female deputy sheriffs. The trial court granted the County’s motion and denied that of Nelson and Farmers, finding that Nelson’s conduct was outside the scope of his employment as a matter of law. The court determined that the case was distinguishable from Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202 [285 Cal.Rptr. 99, 814 P.2d 1341] (Mary M.), which held that a city may be vicariously liable for the rape of a motorist committed by an on-duty police officer.

The Court of Appeal reversed. After noting that all of Nelson’s misconduct occurred on the jail premises while the deputies were in uniform and on duty, and that Nelson had authority over Bates and could give direct orders that she had to obey, the court held that the standard for scope of employment had been met. The court concluded that Nelson’s conduct was not so unusual or startling that it would be unfair to include the loss as a cost of the employer’s doing business, and that the authority of a training officer over a subordinate in the employment situation is like that of a police officer over a citizen. The Court of Appeal directed the trial court to vacate the order granting the County’s motion for summary judgment and to enter a new order granting the motion of Nelson and Farmers for summary judgment. We granted the County’s petition for review.

II. Discussion

A. Tort Claims Act

In 1963, the Tort Claims Act was enacted in order to provide a comprehensive codification of the law of governmental liability and immunity in California. (Los Angeles Police Protective League v. City of Los Angeles (1994) 27 Cal.App.4th 168, 174 [32 Cal.Rptr.2d 574].) As part of its overall statutory scheme, the Tort Claims Act provides that in the usual civil case brought against a public employee, a public entity is required to defend the action against its employee (Gov. Code, § 995 et seq.)⁴ and to pay any claim or judgment against the employee in favor of the third party plaintiff (§ 825 et seq.). A principal purpose of the indemnification statutes is to assure “the zealous execution of official duties by public employees.” (Johnson v. State of California (1968) 69 Cal.2d 782, 792 [73 Cal.Rptr. 240, 447 P.2d 352].)

The requirements pertaining to a public entity’s duty to defend an employee are set forth at sections 995 through 996.6. Section 995 provides in relevant part that, except as otherwise provided, upon request of an employee, “a public entity shall provide for the defense of any civil action or proceeding brought against him, in his official or individual capacity or both, on account of an act or omission in the scope of his employment as an employee of the public entity.” (Italics added.) Where, as here, the public entity refuses to provide the defense as requested and the employee retains his own counsel to defend the action, the employee “is entitled to recover from the public entity such reasonable attorney’s fees, costs and expenses as are necessarily incurred . . . if the action. . . arose out of an act or omission in the scope of his employment as an employee of the public entity, but he is not entitled to such reimbursement if the public entity establishes (a) that he acted or failed to act because of actual fraud, corruption or actual malice . . . .” (§ 996.4, italics added; see also § 995.2, subd. (a) [a public entity may refuse to provide for the defense of a civil action if it determines that the employee’s act or omission was not within the scope of employment, or that the employee acted or failed to act because of actual fraud, corruption or actual malice, or that the public entity’s defense of the action would create a “specific conflict of interest” as defined therein].)

The provisions relating to a public entity’s duty to provide indemnification are addressed at sections 825 through 825.6. At all relevant times herein, section 825, subdivision (a), provided that if the public entity is requested by an employee to defend a civil action against him “for an injury arising out of an act or omission occurring within the scope of his employment as an employee of the public entity,'” and such request is made in writing not less than 10 days before the day of trial and the employee reasonably cooperates in good faith in the defense, “the public entity shall pay any judgment based thereon or any compromise or settlement of the claim or action to which the public entity has agreed.” (Stats. 1985, ch. 1373, § 1, p. 4875, italics added.) If the public entity does not conduct the defense as requested, and the employee pays the claim or judgment against him, the employee may be entitled to recover such payment from the public entity “only if he establishes that the act or omission upon which the claim or judgment is based occurred within the scope of his employment as an employee of the public entity and the public entity fails to establish that he acted or failed to act because of actual fraud, corruption or actual malice or that he willfully failed or refused to conduct the defense of the claim or action in good faith or to reasonably cooperate in good faith in the defense conducted by the public entity.” (§ 825.2, subd. (b), italics added.)

As these statutory provisions make clear, the burden rests upon the public employee to establish that the act or omission was within the scope of employment. (Los Angeles Police Protective League v. City of Los Angeles, supra, 27 Cal.App.4th at p. 176; Rivas v. City of Kerman (1992) 10 Cal.App.4th 1110, 1118-1119 [13 Cal.Rptr.2d 147].)

In this case, the County is not contending that Nelson acted with “actual fraud, corruption or actual malice” within the meaning of the above statutes.⁵ Nor is the County arguing that Nelson failed or refused to cooperate in defense of the action, or that a specific conflict of interest existed. Rather, the County contends it had no statutory duty to defend or indemnify Nelson because his acts of sexual harassment were outside the scope of his employment as a matter of law. For the reasons below, we conclude that the Court of Appeal erred in determining this issue adversely to the County.

B. Scope of Employment

As used in the Tort Claims Act, “[t]he phrase ‘scope of his employment’ is intended to make applicable the general principles that the California courts use to determine whether the particular kind of conduct is to be considered within the scope of employment in cases involving actions by third persons against the employer for the torts of his employee.” (4 Cal. Law Revision Com. Rep. (Dec. 1963) p. 814, fti. 3.)⁶

In Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962 [227 Cal.Rptr. 106, 719 P.2d 676] (Perez), we explained scope of employment principles under the respondeat superior doctrine as follows: “[A]n employer is liable for risks ‘arising out of the employment.’ [Citations.] [<fl] A risk arises out of the employment when ‘in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. [Citations.] In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one “that may fairly be regarded as typical of or broadly incidental” to the enterprise undertaken by the employer. [Citation.]’ [Citation.] Accordingly, the employer’s liability extends beyond his actual or possible control of the employee to include risks inherent in or created by the enterprise.” (Perez, supra, 41 Cal.3d at p. 968, italics added [employer vicariously liable for injuries sustained by plaintiff when he was knocked from a tractor driven by employee while disking employer’s orchard].) These principles were reiterated in Mary M., supra, 54 Cal.3d at page 209.

As the Court of Appeal elaborated in Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 618-619 [124 Cal.Rptr. 143] (Rodgers): “One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity. However, ‘foreseeability’ in this context must be distinguished from ‘foreseeability’ as a test for negligence. In the latter sense ‘foreseeable’ means a level of probability which would lead a prudent person to take effective precautions whereas ‘foreseeability’ as a test for respondeat superior merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. [Citations.]” (Italics added.) We find the Rodgers foreseeability test useful because it reflects the central justification for respondeat superior: that losses fairly attributable to an enterprise—those which foreseeably result from the conduct of the enterprise—should be allocated to the enterprise as a cost of doing business. (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 450 [256 Cal.Rptr. 766, 769 P.2d 948] (John R.); Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959-960 [88 Cal.Rptr. 188, 471 P.2d 988].)

In California, the scope of employment has been interpreted broadly under the respondeat superior doctrine. For example, “[t]he fact that an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer.” (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 139 [176 Cal.Rptr. 287] (Alma W.).) Thus, acts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal and not acts of service, do not take the employee outside the scope of employment. (See ibid.) Moreover, “ ‘where the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly nor indirectly could he have been serving his employer.’ [Citations.]” (John R., supra, 48 Cal.3d at p. 447.) It is also settled that an employer’s vicarious liability may extend to willful and malicious torts of an employee as well as negligence. (Mary M., supra, 54 Cal.3d at p. 209; John R., supra, 48 Cal.3d at p. 447.) Finally, an employee’s tortious act may be within the scope of employment even if it contravenes an express company rule and confers no benefit to the employer. (Mary M., supra, 54 Cal.3d at p. 209; Perez, supra, 41 Cal.3d at pp. 969-970.)

Notwithstanding the generally broad view given to scope of employment determinations, the law is clear that an employer is not strictly liable for all actions of its employees during working hours. Significantly, an employer will not be held vicariously liable for an employee’s malicious or tortious conduct if the employee substantially deviates from the employment duties for personal purposes. (Alma W., supra, 123 Cal.App.3d at p. 139; see John R., supra, 48 Cal.3d at p. 447; Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d at p. 960; Jeffrey E. v. Central Baptist Church (1988) 197 Cal.App.3d 718, 721 [243 Cal.Rptr. 128] (Jeffrey E.).) Thus, if the employee “inflicts an injury out of personal malice, not engendered by the employment” (Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, 656 [171 P.2d 5]) or acts out of “personal malice unconnected with the employment” (Rodgers, supra, 50 Cal.App.3d at p. 621), or if the misconduct is not an “outgrowth” of the employment (Carr v. Wm. C. Crowell Co., supra, 28 Cal.2d at p. 657), the employee is not acting within the scope of employment. Stated another way, “[i]f an employee’s tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior.” (Alma W., supra, 123 Cal.App.3d at p. 140.) In such cases, the losses do not foreseeably result from the conduct of the employer’s enterprise and so are not fairly attributable to the employer as a cost of doing business.

To aid us in our application of these principles, we find it helpful to compare the types of situations in which the respondeat superior doctrine has and has not been applied.

Our review of the case law discloses that an employer may be subject to vicarious liability for injuries caused by an employee’s tortious actions resulting or arising from pursuit of the employer’s interests. (E.g., Perez, supra, 41 Cal.3d 962 [tractor operator carried unauthorized passenger while serving the employer’s business]; De Rosier v. Crow (1960) 184 Cal.App.2d 476 [7 Cal.Rptr. 540] [waitress employed by bowling alley/ liquor bar attempted to stop fight involving patrons and owner of bowling alley/bar]; Caldwell v. Farley (1955) 134 Cal.App.2d 84 [285 P.2d 294] [union steward struck union member who expressed opinion against strike]; Sullivan v. Matt (1955) 130 Cal.App.2d 134 [278 P.2d 499] [railroad superintendent, acting to further the interests of his company, assaulted yardman for attentions to superintendent’s secretary]; Stansell v. Safeway Stores, Inc. (1941) 44 Cal.App.2d 822 [113 P.2d 264] [assault during dispute with customer over an order]; Pritchard v. Gilbert (1951) 107 Cal.App.2d 1 [236 P.2d 412] [traveling salesman, while driving car on employer’s business, lost temper and beat motorist over near accident]; Martin v. Leatham (1937) 22 Cal.App.2d 442 [71 P.2d 336] [private detective, hired to maintain order in skating rink, engaged in altercation with patron seeking admission, and shot decedent, who had intervened to stop the fight].) Vicarious liability may also be proper where the tortious conduct results or arises from a dispute over the performance of an employee’s duties, even though the conduct is not intended to benefit the employer or to further the employer’s interests. (E.g., Fields v. Sanders (1947) 29 Cal.2d 834 [180 P.2d 684, 172 A.L.R. 525] [employee truck driver beat motorist with wrench during dispute over employee’s driving on a company job]; Carr v. Wm. C. Crowell Co., supra, 28 Cal.2d 652 [employee of general contractor threw hammer at subcontractor during dispute over construction procedure].) Vicarious liability may even be appropriate for injuries caused after work hours where a dispute arises over the rights and privileges of off-duty employees. (Rodgers, supra, 50 Cal.App.3d 608 [injuries inflicted by off-duty employees of general contractor during dispute over right to use subcontractor’s equipment].) In these types of situations, the tortious actions are engendered by events or conditions relating to the employment and therefore are properly allocable to the employer.

Conversely, vicarious liability is deemed inappropriate where the misconduct does not arise from the conduct of the employer’s enterprise but instead arises out of a personal dispute (e.g., Monty v. Orlandi (1959) 169 Cal.App.2d 620, 624 [337 P.2d 861] [bar owner not vicariously liable where on-duty bartender assaulted plaintiff in the course of a personal dispute with his common law wife]), or is the result of a personal compulsion (e.g., Thorn v. City of Glendale (1994) 28 Cal.App.4th 1379, 1383 [35 Cal.Rptr.2d 1] [city not vicariously liable where fire marshal set business premises on fire during an inspection]). In such cases, the risks are engendered by events unrelated to the employment, so the mere fact that an employee has an opportunity to abuse facilities or authority necessary to the performance of his or her duties does not render the employer vicariously liable. (See Alma W., supra, 123 Cal.App.3d at p. 140.)

In a context more analogous to this case, several decisions have addressed whether an employee’s sexual misconduct directed toward a third party is within the scope of employment for respondeat superior purposes. Those cases hold that, except where sexual misconduct by on-duty police officers against members of the public is involved (e.g., Mary M., supra, 54 Cal.3d 202; White v. County of Orange (1985) 166 Cal.App.3d 566 [212 Cal.Rptr. 493]), the employer is not vicariously liable to the third party for such misconduct (e.g., Jeffrey E., supra, 197 Cal.App.3d 718 [church not liable for repeated acts of sexual assault on minor by Sunday school teacher]; Rita M. v. Roman Catholic Archbishop (1986) 187 Cal.App.3d 1453 [232 Cal.Rptr. 685] (Rita M.) [Roman Catholic archbishop not liable for seduction of parishioner by priests]; Alma W., supra, 123 Cal.App.3d 133 [school district not liable for janitor’s rape of student]). In those decisions, vicarious liability was rejected as a matter of law because it could not be demonstrated that the various acts of sexual misconduct arose from the conduct of the respective enterprises. In particular, the acts had been undertaken solely for the employees’ personal gratification and had no purpose connected to the employment. Moreover, the acts had not been engendered by events or conditions relating to any employment duties or tasks; nor had they been necessary to the employees’ comfort, convenience, health, or welfare while at work. Similarly, in John. R., supra, 48 Cal.3d at page 452, we concluded that “the connection between the authority conferred on teachers to carry out their instructional duties and the abuse of that authority to indulge in personal, sexual misconduct is simply too attenuated to deem a sexual assault as falling within the range of risks allocable to a teacher’s employer.”

With the foregoing principles and case law in mind, we turn our attention to the facts of the instant case. In arguing that Nelson’s repeated acts of sexual harassment were within the scope of his employment, Farmers⁷ places considerable emphasis on the undisputed evidence that most of the harassment took place on the jail premises during work hours while the deputies were on duty. We are not persuaded.

Even though Farmers has shown that Nelson committed virtually all of the harassing acts during his work hours at the jail, Farmers cannot prevail on the scope of employment issue without also establishing that the acts arose out of the employment. As explained above, “[i]f an employee’s tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior.” (Alma W., supra, 123 Cal.App.3d at p. 140; see Monty v. Orlandi, supra, 169 Cal.App.2d at p. 623; cf. John R., supra, 48 Cal.3d 438.)

On this point, Farmers does not dispute that Nelson’s repeated requests for sexual favors and his inappropriate touchings were motivated for strictly personal reasons unrelated to the guarding of inmates or the performance of any other duty of a deputy sheriff at a county jail. Furthermore, Nelson’s misconduct was not reasonably necessary to his comfort, convenience, health, and welfare while at work. Nor was it precipitated by a work-related dispute over the performance of his duties or those of his victims. Indeed, Nelson’s actions were in direct violation of the County’s policy prohibiting sexual harassment in the workplace, and the County sought to discipline him for his transgressions. While the scope of employment may encompass tortious conduct that disregards the employer’s express orders (Mary M., supra, 54 Cal.3d at p. 209; Perez, supra, 41 Cal.3d at pp. 969-970), an employer will not be held vicariously liable where, as here, “ ‘it clearly appears that neither directly nor indirectly could [the employee] have been serving his employer.’ ” (John. R., supra, 48 Cal.3d at p. 447).

Farmers next argues that Nelson’s actions meet the scope of employment test because many other decisions have held employers vicariously liable for far more serious physical injuries caused by misconduct far more egregious and shocking. (E.g., Fields v. Sanders, supra, 29 Cal.2d 834; Carr v. Wm. C. Crowell Co., supra, 28 Cal.2d 652; De Rosier v. Crow, supra, 184 Cal.App.2d 476; Caldwell v. Farley, supra, 134 Cal.App.2d 84; Sullivan v. Matt, supra, 130 Cal.App.2d 134; Pritchard v. Gilbert, supra, 107 Cal.App.2d 1; Rodgers, supra, 50 Cal.App.3d 608; Stansell v. Safeway Stores, Inc., supra, 44 Cal.App.2d 822; Martin v. Leatham, supra, 22 Cal.App.2d 442.)

This argument misses the mark. Each one of those decisions involved an assault precipitated by a work-related dispute, thus clearly illustrating the principle that the tortious act must arise out of the employment. The misbehavior here, which had nothing to do with the work performed by Nelson or his victims, stands in sharp contrast to the conduct in those cases.

Farmers additionally argues that vicarious liability is proper based upon our statement in Perez, supra, 41 Cal.3d at page 968, that “[a] risk arises out of the employment when ‘in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. . . .’ ” (See also Mary M., supra, 54 Cal.3d at p. 209.) Relying on this language, Fanners vigorously contends that, as a general matter, sexual harassment is foreseeable and cannot be viewed as unusual or startling in any workplace.

In support of this point, Farmers first refers us to several recent examples of highly publicized stories of harassment and to various treatises citing a number of studies and surveys indicating that on-the-job sexual harassment is pervasive. (See 1 Conte, Sexual Harassment in the Workplace (2d ed. 1994) pp. 1-2; Lindemann & Kadue, Sexual Harassment in Employment Law (1992) pp. 4-5 & fns. 12-18.) Farmers also relies upon Capitol City Foods, Inc. v. Superior Court (1992) 5 Cal.App.4th 1042 [7 Cal.Rptr.2d 418], which suggested that a legislative declaration contained in the 1984 amendment of the FEHA demonstrates the foreseeability of sexual harassment in the workplace, and Carr v. Allison Gas Turbine Div. Gen. Motors (7th Cir. 1994) 32 F.3d 1007, in which Chief Judge Posner of the United States Court of Appeals for the Seventh Circuit acknowledged the propensity of male employees to sexually harass their female coworkers in a newly integrated work environment such as the one here. We are not convinced.

While it is no doubt true that sexual harassment is a pervasive problem and that many workers in many different fields of employment have experienced some form of uninvited and unwanted sexual attention, this argument stretches the respondeat superior foreseeability concept beyond its logical limits. As our decisions explain, in determining whether a risk is “unusual or startling” for respondeat superior purposes, “ ‘the inquiry should be whether the risk was one “that may fairly be regarded as typical of or broadly incidental” to the enterprise undertaken by the employer.’ ” (Perez, supra, 41 Cal.3d at p. 968, italics added; see Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d at p. 960.) Thus, it is not enough that a risk be neither unusual nor startling as a general matter; rather, the risk must be evaluated in the context of the employer’s particular enterprise. (Ibid.; Rodgers, supra, 50 Cal.App.3d at pp. 618-619.) Under the foregoing standard, we are compelled to conclude that evidence of the general prevalence of sexual harassment in workplaces and in newly integrated work environments has little, if any, probative value in determining whether lewd propositioning and offensive touchings of coworkers are typical of or broadly incidental to the particular enterprise here—a county jail.

Moreover, we cannot agree that Capitol City Foods, Inc. v. Superior Court, supra, 5 Cal.App.4th 1042, stands for the proposition that the Legislature, in declaring a policy against sexual harassment in the workplace in its 1984 amendment of the FEHA, has indicated such conduct ordinarily is foreseeable in the respondeat superior sense. Initially we note that the Court of Appeal’s remarks to that effect were based in part upon a concession by the employer. (See 5 Cal.App.4th at p. 1048.) More importantly, the proposition finds no support in the one legislative declaration cited in the opinion (ibid., citing Stats. 1984, ch. 1754, pp. 6403-6404) or in the actual statutory provisions of the FEHA.

The comment gleaned from Carr v. Allison Gas Turbine Div. Gen. Motors, supra, 32 F.3d at page 1012, also fails to persuade us otherwise. In that case, Chief Judge Posner declared: “General Motors was astonishingly unprepared to deal with problems of sexual harassment, foreseeable though they are when a woman is introduced into a formerly all-male workplace.” (32 F.3d at p. 1012, italics added.) But Chief Judge Posner made that reference to foreseeability in the context of analyzing the employer’s negligence in failing to take appropriate responsive action in the face of sexual harassment complaints by the plaintiff. (Ibid.) Because it is abundantly clear that foreseeability in the respondeat superior context is distinct from the negligence test for foreseeability (Rodgers, supra, 50 Cal.App.3d at pp. 618-619; see also Rita M., supra, 187 Cal.App.3d at p. 1461; Alma W., supra, 123 Cal.App.3d at p. 142), Chief Judge Posner’s statements prove unhelpful to Farmers’s position.

Likewise, the analysis offered by Justice Mosk fails to convince us. To justify the conclusion that lewd propositioning and offensive touching fall within the scope of employment at a county jail as a matter of law, Justice Mosk relies in part upon a number of cases reflecting sexual harassment lawsuits in police and jail settings. These cases are cited, Justice Mosk says, “not for their law but for their facts, i.e., to show the frequency with which women police and correctional officers complain of sexual harassment by fellow officers or superiors.” (Dis. opn. of Mosk, J., post, at p. 1032.)

Unlike Justice Mosk, we do not believe it appropriate to rely upon a survey of published cases to establish that sexual harassment in police and jail settings is an inherent risk for respondeat superior purposes. First and foremost, Justice Mosk’s approach ignores a basic tenet of respondeat superior law, i.e., that for the doctrine to apply, the tortious act must arise out of the employment.⁸ Second, Justice Mosk cites no authority to support his unusual approach, and the approach offers no principled basis for determining when a particular type of occurrence may be deemed to constitute an inherent risk. (See conc. opn. of Werdegar, J., post, at pp. 1023-1024.) Third, applying the same type of approach in other contexts, we would be forced to conclude, in direct conflict with John R., supra, 48 Cal.3d 438, and numerous other California and out-of-state decisions, that sexual molestation by teachers and clergy is an inherent risk of schools and religious institutions simply because of the frequency with which such misconduct is claimed.

Furthermore, while Justice Mosk prefers not to discuss the legal analyses of his cases (virtually all of which involved claims under Title VII and other federal acts), a review discloses that none of them stands for the proposition that sexual harassment is within the scope of a police or correctional officer’s employment under the common law. Indeed, at least two of the decisions appear to reject that notion. (See Hirschfeld v. New Mexico Corrections Dept. (10th Cir. 1990) 916 F.2d 572, 576-577; Ball v. City of Cheyenne, Wyo. (D.Wyo. 1993) 845 F.Supp. 803, 809.) For all of the foregoing reasons, we regard Justice Mosk’s analysis and conclusions as unsound.

Both Farmers and Justice Mosk additionally rely upon particular evidence in the record to argue that sexual harassment of female deputy sheriffs was foreseeable because profanity and sexually explicit language and banter were common at this particular county jail, especially in 1983 and 1984 when the workforce was first integrated. Specifically, both Nelson and a lieutenant named Armand Tiano submitted declarations stating that profanity, sexually explicit language, banter and horseplay were extremely common among coworkers and peers at the county jail. Additionally, Sergeant Pascual testified that jails are “vulgar places where there is talk of everything,” and that the vulgar and suggestive language used by Nelson was “not uncommon” and “just regular jail talk.” This argument is without merit.

Even if the evidence shows that the use of profanity and sexually explicit language was not uncommon at this particular county jail, it still falls far short of establishing that serious misconduct such as asking individual employees for sexual favors and targeting those individuals for inappropriate touching is either typical of or broadly incidental to the operation of a county jail or to the duties and tasks of deputy sheriffs at such a jail. (See Perez, supra, 41 Cal.3d at p. 968; Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d at p. 960.)

Moreover, factors that might be relevant to whether the County itself acted negligently are not relevant to whether the County should be vicariously liable for an employee’s misconduct regardless of its own fault. (John R., supra, 48 Cal.3d at p. 450, fn. 9; see also 48 Cal.3d at p. 451, fn. 10; Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d at p. 960 [in making respondeat superior determination, “ ‘we are not looking for that which can and should reasonably be avoided, but [for] the more or less inevitable toll of a lawful enterprise’ ”].) Accordingly, even assuming arguendo that the usage of profanity and crude language at the jail should have put the County on notice that Nelson’s actions were “foreseeable” in a negligence sense despite the absence of a causal link between the acts of sexual harassment and Nelson’s work as a deputy sheriff, that is a matter lacking relevance in scope of employment analysis.

Alternatively, Farmers contends that, at least with respect to Bates, Nelson’s misconduct occurred in large part because he was her training officer, and was able to abuse the supervisory authority conferred upon him by the County.⁹ By virtue of his position, Fanners argues, Nelson had authority or apparent authority to commit quid pro quo harassment.¹⁰ (This evidently refers to when Nelson told Bates he would not allow her to “get off training” unless she consented to “give him head.”) In Farmers’s view, this case is comparable to Mary M., supra, 54 Cal.3d 202, which held that a city may be vicariously liable where an on-duty police officer abused his official authority and raped a woman after detaining her for a traffic stop.

The attempted analogy to Mary M. fails. As Farmers concedes, Nelson did not act as a “supervisor” for two of his three victims (Daugherty and Murphy). As for Bates, the undisputed evidence shows that Nelson was her training officer from March 1984 to June 1984 and that during this time Nelson told her several times that she would have to “give him head” in order to get off training. But the undisputed evidence additionally reflects that Nelson had harassed and propositioned Bates previously, between April 1983 and December 1983, when he had no supervisory authority over Bates but was merely her coworker.

Even if we focus solely on the period of time when Nelson was Bates’s supervisor, the work-related authority of a supervisor over a trainee employee in a county sheriff’s department is in no way comparable to the extraordinary power and authority that police officers exercise over members of the public. As emphasized in Mary M., police officers occupy a unique position of trust in our society. They are given the authority to detain, to arrest and to use deadly force if necessary. When officers abuse their authority by committing crimes against members of the community, they violate the public trust and may erode the community’s confidence in the integrity of its police force. (54 Cal.3d at pp. 206-207.) Plainly there is no parallel between the supervisory authority in the instant case and the formidable, official authority at issue in Mary M.

Moreover, Mary M., supra, 54 Cal.3d 202, did not suggest that an employer may be vicariously liable for an employee’s misconduct whenever there is an abuse of a job-created, hierarchical relationship in which the employee is afforded a high degree of authority over the victim. Stressing quite clearly that its conclusion “flows from the unique authority vested in police officers” (54 Cal.3d at p. 218, fn. 11), Mary M. distinguished but did not purport to overrule previous cases rejecting the application of respondeat superior for misconduct occurring in relationships of a hierarchical nature where, at least in the eyes of the victim, the wrongdoer’s authority might be considered very great. (E.g., John R., supra, 48 Cal.3d at p. 452 [connection between the extensive authority conferred on teachers to carry out their instructional duties and the abuse of that authority to indulge in personal, sexual misconduct is simply too attenuated to deem a sexual assault as falling within the range of risks allocable to a teacher’s employer]; Jeffrey E., supra, 197 Cal.App.3d at p. 723 [Sunday school teacher’s sexual molestation of minor not equivalent to police officer’s abuse of official authority over members of the public]; Rita M., supra, 187 Cal.App.3d 1453 [seduction of parishioner by seven priests not foreseeable in the sense required for respondeat superior]; see also Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1854-1855 [19 Cal.Rptr.2d 671] [conduct of teachers who sexually molest students under their supervision will not be imputed to school district, though districts may be liable for their own negligence in hiring and supervising teachers].) Even though the above authorities did not involve misconduct by supervisors against trainee employees, they nonetheless support the conclusion that, for purposes of respondeat superior, employees do not act within the scope of employment when they abuse job-created authority over others for purely personal reasons.

Finally, we consider whether imposing vicarious liability would further the three policy justifications for the respondeat superior doctrine: (1) to prevent recurrence of the tortious conduct; (2) to give greater assurance of compensation for the victim; and (3) to ensure that the victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury. (Mary M., supra, 54 Cal.3d at p. 209; John R., supra, 48 Cal.3d at pp. 450-452.) For the reasons that follow, we find that, on balance, the underlying purposes of the doctrine do not support its application in this case.

Of the three policy justifications, the first recognizes that “imposing liability on the employer may prevent recurrence of the tortious conduct, because it ‘creates a strong incentive for vigilance by those in a position “to guard substantially against the evil to be prevented.” ’ ” (Mary M., supra, 54 Cal.3d at p. 214.) In John R., supra, we first recognized that prevention and deterrence “play[] little role in the allocation of responsibility for the sexual misconduct of employees generally . . . .” (48 Cal.3d at p. 451.) We then determined that the imposition of vicarious liability for sexual misconduct of a student by a teacher “would be far too likely to deter [school] districts from encouraging, or even authorizing, extracurricular and/or one-on-one contacts between teachers and students or to induce districts to impose such rigorous controls on activities of this nature that the educational process would be negatively affected.” (Ibid., fn. omitted.) Conversely, in Mary M., supra, it was concluded that the goal of prevention would be furthered in a case of police rape , because “[t]here is little or no risk that preventive measures would significantly interfere with the ability of police departments to enforce the law and to protect society from criminal acts.” (54 Cal.3d at p. 215.)

In this case, we find it significant that public entities such as the County are already required by the FEHA to “take all reasonable steps to prevent harassment from occurring.”¹¹ (§ 12940, subd. (h)(1).) The FEHA makes it unlawful for public entities and any persons acting as their agents to sexually harass any employee or applicant, and for public entities to fail to take immediate and appropriate corrective action if they know or should know of sexual harassment by employees other than agents or supervisors. (§ 12940, subd. (h)(1).) Public entities may be directly liable to sexually harassed employees for compensatory damages in civil actions under the FEHA.¹² (See Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 221 [185 Cal.Rptr. 270, 649 P.2d 912].) Title VII also prohibits sexual harassment in the workplace. (Meritor Savings Bank v. Vinson (1986) All U.S. 57 [91 L.Ed.2d 49, 106 S.Ct. 2399].)¹³

Because this potential for direct liability already furnishes powerful motivation for the County to establish and maintain programs and procedures designed to eliminate sexual harassment of employees at the jail, the imposition of vicarious liability is not essential to “ ‘create[] a strong incentive for vigilance by those in a position “to guard substantially against the evil to be prevented.” ’ ” (Mary M., supra, 54 Cal.3d at p. 214.) Indeed, since the FEHA already requires the County to “take all reasonable steps to prevent harassment from occurring” (§ 12940, subd. (h)(1), italics added), the imposition of liability under respondeat superior might, in effect, simply create an incentive to adopt any and all possible preventive measures, irrespective of reasonableness or probable effectiveness. In our view, the goal of deterring sexual harassment would not and should not be advanced by encouraging precautionary measures that are unreasonable or of marginal benefit.

In considering this policy justification, we recognize that the instant case, which concerns a public employee’s right to statutory indemnification, comes to us in a posture different from the usual case in which an injured third party seeks to hold a public entity vicariously liable for an employee’s tort. There is nothing about the particular context of this case, however, that detracts from the above analysis. If anything, deterrence objectives are better served by denying sexual harassers the right to indemnity than by insulating them from financial responsibility for their own misconduct.

In sum, no one would dispute that the prevention of sexual harassment in the workplace is of utmost importance. But subjecting the County to vicarious liability simply is unnecessary as an incentive “to guard substantially against the evil to be prevented” (Mary M., supra, 54 Cal.3d at p. 214), and is just as likely to accomplish more harm than good. We therefore conclude that the concerns of prevention and deterrence do not support a finding that Nelson’s misconduct was within the scope of his employment.

The second policy justification for the application of respondeat superior is to give greater assurance of compensation to the victim. (Mary M., supra, 54 Cal.3d at p. 209.) As pointed out above, the County may be directly liable to sexual harassment victims in civil actions under the FEHA and Title VII. Thus, regardless of the outcome here, deputy sheriffs who have been sexually harassed may presently secure compensation directly from the County in many types of situations.¹⁴ Even though the imposition of vicarious liability might additionally assure compensation to victims of sexual harassment where the FEHA would not—i.e., where the harassment is by a nonsupervising coworker and the County, its agents and supervisors do not act unlawfully or unreasonably—it might also, under the reasoning of John R., supra, 48 Cal.3d at page 451, “tend to make insurance, already a scarce resource, even harder to obtain, and could lead to the diversion of needed funds from [the oversight of inmates and jail security] to cover claims.” Moreover, the particular context of this case fails to aid Farmers in our policy analysis since indemnification of Nelson under sections 825.2 and 995 is unnecessary to assure compensation to the victims. On balance, we find this second factor to be, at best, neutral in our determination.

The third policy justification to consider is whether the application of respondeat superior would ensure that the victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury. (Mary M., supra, 54 Cal.3d at p. 216.) In Mary M., supra, where the awesome and dangerous power delegated to police officers was involved, it was concluded that “[t]he cost resulting from misuse of that power should be borne by the community, because of the substantial benefits that the community derives from the lawful exercise of police power.” (Id. at p. 217, italics added.)

Here, the third justification for imposing vicarious liability is discemibly weaker. Significantly, Nelson exercised no job-conferred authority over Daugherty or Murphy at the time he harassed them, and had no authority over Bates when he initially harassed her in 1983. And though Nelson continued to harass Bates after becoming her training officer in 1984, his supervisory authority did not include the extraordinary power to detain, arrest or jail his trainee. Thus, even if we were to consider only the misconduct Nelson committed as a supervisor, this case does not implicate “the considerable authority and control inherent in the responsibilities of an officer in enforcing the law” or the “substantial benefits” that the community derives therefrom.¹⁵ (Mary M., supra, 54 Cal.3d at p. 218.) We therefore conclude that the connection between Nelson’s duties and his deliberate targeting of the three women for sexual harassment was “simply too attenuated” to be deemed as falling within the range of risks allocable to the community in this case. (See John R., supra, 48 Cal.3d at p. 452 [drawing a similar conclusion regarding sexual abuse and the authority of a teacher over a student]; Jeffrey E., supra, 197 Cal.App.3d at p. 723 [same, regarding authority of a Sunday school teacher over a minor].)

Accordingly, consideration of the three respondeat superior policy justifications reinforces our determination that Nelson’s lewd propositioning and offensive touching of his trainee and coworkers were not within the scope of his employment at the county jail.¹⁶

Despite what Justice Mosk suggests, our conclusion—that the sexual harassment here was not within the scope of employment even though it occurred during work hours in a workplace that may be characterized as traditionally male-dominated—finds overwhelming support in the decisions of other jurisdictions. (E.g., Tumminello v. City of New York (1995) 212 A.D.2d 434 [622 N.Y.S.2d 714] [New York law]; Smith v. American Exp. Travel Services (1994) 179 Ariz. 131 [876 P.2d 1166] [Arizona law]; Phelps v. Vassey (1993) 113 N.C.App. 132 [437 S.E.2d 692] [North Carolina law]; Carrv. U.S. West Direct Co. (1989) 98 Or.App. 30 [779 P.2d 154] [Oregon law]; Dockter v. Rudolf Wolff Futures, Inc. (N.D.Ill. 1988) 684 F.Supp. 532 [Illinois law]; Valdez v. Church’s Fried Chicken, Inc. (W.D.Tex. 1988) 683 F.Supp. 596 [Texas law]; Favors v. Aleo Mfg. Co. (1988) 186 Ga.App. 480 [367 S.E.2d 328] [Georgia law]; Bennett v. Corroon and Black Corp. (La.Ct.App. 1987) 517 So.2d 1245 [Louisiana law]; Davis v. United States Steel Corp. (4th Cir. 1985) 779 F.2d 209 [South Carolina law]; but see Carlson v. Crater Lake Lumber Co. (1991) 105 Or.App. 314 [804 P.2d 511] [Oregon law]; Davis v. Black (1991) 70 Ohio App.3d 359 [591 N.E.2d 11] [Ohio law].) While these out-of-state authorities are not controlling in our determinations, they nonetheless demonstrate that Justice Mosk’s contrary conclusion is not in sync with the national trend.

On a last note, we observe that the Court of Appeal, in determining that Nelson’s acts were within the scope of employment, attributed significant weight to the fact that the County had elected to defend other employees also accused in the same lawsuit of sexual harassment. For the reasons that follow, we disagree with the view that a public entity’s decision to defend certain employees accused of sexual harassment is an appropriate factor for determining scope of employment.

First, we have been presented with no sound legal or policy reason to support the.conclusion that, under sections 995 and 995.2, a public entity may not properly defend a public employee in a civil suit alleging sexual harassment if the entity determines that the harassment charges are not well founded. Indeed, providing a defense in such circumstances is consistent with one of the purposes of governmental defense statutes, to provide public employees acting in the scope of employment with a measure of protection from the harassment of vexatious lawsuits. (39 Ops.Cal.Atty.Gen. 71, 73 (1962), citing Huffaker v. Decker (1946) 77 Cal.App.2d 383, 388 [175 P.2d 254] [both discussing earlier statutes].) We therefore decline to hold that a public entity’s agreement to undertake representation of certain employees for such reasons will defeat the entity’s right to refuse the defense of other employees whose acts of sexual harassment are undisputed.

Second, we see no inconsistency in the County’s apparent determination that employees accused of failing to properly investigate and respond to sexual harassment charges were acting within the scope of employment. It is reasonable to assume that employees who investigate such charges and attempt remedial measures are engaged in conduct required of their employment, and that shortcomings in fulfilling such duties are either incidental to or reasonably foreseeable as a direct consequence of such duties.

In closing, we observe that both the County and Farmers take the position that the scope of employment question may be resolved as a matter of law in this case. We agree. “Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when ‘the facts are undisputed and no conflicting inferences are possible.’ ”¹⁷ (Mary M., supra, 54 Cal.3d at p. 213.) Mindful of this standard, we conclude that the facts, even when viewed in the light most favorable to Farmers, present no basis for finding that Nelson acted within the scope of his employment.¹⁸ Consequently, Farmers cannot prevail on its claims against the County for indemnification and defense costs under sections 825.2 and 996.4.

III. Conclusion

We conclude that, because Nelson’s repeated acts of sexual harassment fell outside the scope of his employment as a deputy sheriff, public funds may not be used to indemnify him for liabilities arising out of his own despicable conduct. In so concluding, however, we wish to emphasize that our holding will not, as various amici curiae seem to fear, eliminate the incentive for employers to prevent or respond to sexual harassment in the workplace. Nor will our holding leave sexual harassment victims without adequate means to recover compensation for their injuries.

Even though, under our analysis, the respondeat superior doctrine would not subject an employer to vicarious liability for sexual harassment exceeding the scope of employment, employers remain directly liable to sexually harassed workers for violations of the FEHA (§ 12940, subd. (h)) and Title VII (42 U.S.C. § 2000e-2).¹⁹ The availability of damages and other relief for employer misconduct and statutory violations provide strong incentives to private and public employers alike to eliminate sexual harassment from their workplaces. Finally, the goal of eradicating harassment from the public sector is more effectively advanced by denying sexual harassers the right to indemnity than by insulating them from financial responsibility for their own misconduct.

The judgment of the Court of Appeal is reversed, and the matter is remanded to that court with directions to vacate the judgment in favor of Farmers and to enter judgment in favor of the County.

Lucas, C. J., Arabian, J., George, J., and Werdegar, J., concurred.

1 According to a stipulation signed by the parties, Fire Insurance Exchange is the successor in interest to Farmers in the policy of insurance and the subrogation claim at issue. For sake of consistency, we shall continue to refer to Farmers.

2 The deputies’ claims based on Title VII did not go to the jury, but were dismissed after trial as duplicative of the FEHA claims. Their common law tort claims had been dismissed prior to trial as untimely.

3 Following a retrial of Murphy’s case, the award in favor of Murphy against the County was reduced from $1.6 million to $700,000.

4 A11 further statutory references are to the Government Code unless otherwise specified.

5 Nelson, Farmers and various amici curiae suggest that the County might have been excused from defending and indemnifying Nelson had it not “waived” this exception.

6 The Law Revision Commission’s report is “entitled to substantial weight in construing [the Tort Claims Act].” (VanArsdale v. Hollinger (1968) 68 Cal.2d 245, 249 [66 Cal.Rptr. 20, 437 P.2d 508], overruled on other grounds, Privette v. Superior Court (1993) 5 Cal.4th 689 [21 Cal.Rptr.2d 72, 854 P.2d 721].)

7 Hereafter, we will use “Farmers” to refer to both Farmers and Nelson.

8 As discussed in footnote 17, post, at p. 1019, Justice Kennard’s dissent is similarly flawed.

9 Both in the trial court and on appeal, the parties have disputed Nelson’s status vis-á-vis Bates. In the proceedings below, the Court of Appeal determined this issue adversely to the County, stating: “As her supervisor and a superior officer, Nelson had authority over Bates and could give her a direct order that she had to obey.”

For purposes of our analysis, we view the evidence most favorably to Farmers and assume that Nelson had supervisory authority over Bates as her training officer.

10 Quid pro quo harassment refers to when “submission to sexual conduct is made a condition of concrete employment benefits.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607 [262 Cal.Rptr. 842].)

11 In 1992, the FEHA was amended to further require all employers to provide information to their employees that contains, at a minimum, components of the following: (1) the illegality of sexual harassment; (2) the definition of sexual harassment under applicable state and federal law; (3) a description of sexual harassment, utilizing examples; (4) the internal complaint process of the employer available to the employee; (5) the legal remedies and complaint process available through the Department of Fair Employment and Housing (department) and the Fair Employment and Housing Commission (commission); and (6) directions on how to contact the department and the commission. (§ 12950, subd. (b), added by Stats. 1992, ch. 908, § 1.) While a claim that information did not reach a particular individual or individuals will not in and of itself result in liability, an employer’s compliance with the statutory information requirement will not insulate the employer from liability. (§ 12950, subd. (d).)

12 A public entity’s civil FEHA liability for sexual harassment is not limited by section 815.2, subdivision (a). The FEHA “creates direct statutory rights, obligations and remedies between a covered ‘employer,’ private or public, and those persons it considers or hires for employment.” (Caldwell v. Montoya (1995) 10 Cal.4th 972, 989,fn. 9 [42 Cal.Rptr.2d 842, 897 P.2d 1320], italics added.) Thus, the FEHA “provides a basis of direct entity liability independent of the derivative liabilities addressed in section 815.2.” (Ibid., italics added.) By “otherwise providing]” for direct entity liability, the FEHA’s provisions provide a viable basis for tort liability against a public employer for coemployee or supervisorial harassment under section 815, subdivision (a), notwithstanding the scope of employment limitations for derivative liability under section 815.2, subdivision (a).

Although employees may also obtain administrative relief for enforcement of the FEHA’s provisions, the department apparently permits any claimant who so wishes to bring a private court action. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1401-1402 [241 Cal.Rptr. 67, 743 P.2d 1323].)

13 The Civil Rights Act of 1991 (Pub.L. No. 102-166 (Nov. 21, 1991) 105 Stat. 1071) recently amended Title VII to authorize the recovery of compensatory and punitive damages for victims of intentional discrimination.

14 The result in the underlying federal action vividly illustrates this point. Daugherty and Murphy ultimately obtained judgments of $183,000 and $700,000, respectively, on their FEHA claims against the County, while Bates obtained a judgment of $400,000 on her FEHA and wrongful discharge claims against the County.

We note that regulations enacted by the Fair Employment and Housing Commission (FEHC) indicate that respondeat superior and scope of employment principles are supposed to play an integral role in fixing an employer’s liability for both supervisor and nonsupervisor sexual harassment under the FEHA. (See Cal. Code Regs., tit. 2, § 7286.6, subd.(b).) Yet it is reasonably clear that the purpose underlying the comprehensive statutory scheme is to ensure that all employers maintain their worksites free from prohibited sexual harassment, regardless of the lack of foreseeability of such harassment in their particular enterprises. (See Stats. 1984, ch. 1754, pp. 6403-6404.) Under the FEHA, however, there is a need to determine whether sexual conduct that occurs off the worksite or after working hours constitutes an “unlawful employment practice” within the ambit of the act. (§ 12940.) Although rigid principles of respondeat superior would not appear to apply to FEHA claims, they do provide guidance in such determinations. (See, e.g., Capitol City Foods, Inc. v. Superior Court, supra, 5 Cal.App.4th 1042; DFEH v. Hart and Starkey, Inc. (1984) No. 84-23, FEHC Precedential Decs. 1984-1985, CEB 9, pp. 27-31.)

15 Even though Nelson may have been given certain authority and control over citizens and inmates as a deputy sheriff at the county jail, he did not use any of that authority or control in sexually harassing the other deputy sheriffs.

16 Farmers asserts that the three policy justifications for respondeat superior support implementation of the indemnification statutes (§§ 825, 996.4) for Nelson’s misconduct here because: (1) requiring public entities to indemnify their employees for defense costs, as well as any judgment, serves as an additional incentive for the entities to prevent the occurrence of sexual harassment in the workplace; (2) requiring public entities to pay for judgments against employees under section 825.2 gives greater assurance of compensation to the injured third parties; and (3) indemnification ensures that the costs of misconduct are spread among those who benefit from the enterprise. These points are largely duplicative of those we have just considered in declining to apply the doctrine of respondeat superior, and provide no basis for a different conclusion.

17 In her dissent, Justice Kennard asserts that the scope of employment question cannot be decided as a matter of law because there are disputed issues of fact concerning: (1) whether Nelson’s admitted actions were nothing more than horseplay; (2) whether Nelson realized his actions were offensive; (3) whether Nelson’s requests for sexual favors were made in jest; and (4) whether such behavior is typical in jails. (Dis. opn. of Kennard, J., post, at pp. 1043-1046.) In our view, none of these identified “issues of fact” preclude resolution of the scope of employment issue on summary judgment.

First of all, Farmers’s brief on the merits repeatedly refers to Nelson’s misconduct as “sexual harassment,” not horseplay. At one point, the brief also refers to Nelson’s actions as a supervisor as “quid pro quo harassment.” Unlike Justice Kennard, we are unwilling to disregard Farmers’s own characterization of the misconduct at issue.

Moreover, the relevance of the second and third issues is unclear. Nelson’s conduct, which included repeated and unwelcome lewd comments, requests for sexual favors, and physical touchings, constituted sexual harassment regardless of whether Nelson had hoped for compliance with his requests, or had harbored ill will and intended to vex the victims, or had unreasonably believed he was being funny.

Finally, with regard to the fourth issue, Justice Kennard concludes that Nelson’s misconduct would fall within the scope of employment if it is typical of employee conduct at jails. (See dis. opn. of Kennard, J., post, at pp. 1043, 1047-1048.) Although Justice Kennard criticizes Justice Mosk’s reliance upon a survey of published cases to resolve that issue as a matter of law, she nonetheless appears to agree with his view that the dispositive issue is whether such behavior is common in jail settings. In this regard, Justice Kennard’s analysis, like that of Justice Mosk, disregards settled law that vicarious liability is inappropriate unless the tortious actions arise from the conduct of the employer’s enterprise or are engendered by events or conditions relating to the duties or tasks of employment.

18 At this juncture, we decline to adopt a bright line rale that all sexual harassment falls outside the scope of employment as a matter of law under all circumstances.

19 As in fact happened in this case, all three of Nelson’s victims obtained substantial judgments against the County on their FEHA claims in the underlying action.