Fiol v. Doellstedt

50 Cal. App. 4th 1318, 58 Cal. Rptr. 2d 308, 96 Daily Journal DAR 13897, 96 Cal. Daily Op. Serv. 8393, 1996 Cal. App. LEXIS 1080, 70 Empl. Prac. Dec. (CCH) 44,568, 72 Fair Empl. Prac. Cas. (BNA) 703

• Court: California Court of Appeal
• Decided: November 19, 1996
• Docket: B092939
• Status: Published

Opinions

Opinion

GRIGNON, J.

Plaintiff and appellant Giovanni Fiol appeals from a judgment of dismissal after defendant and respondent Jon Doellstedt’s motion for judgment on the pleadings was granted without leave to amend in this sexual harassment action. In the published portion of this opinion we conclude a nonharassing supervisor, who fails to take action to prevent sexual harassment, is not personally liable for sexual harassment under the Fair Employment and Housing Act (FEHA), as either an aider and abettor of the harasser or the employer, or as an agent of the employer. In the unpublished portion of the opinion, we discuss the dismissal of Fiol’s common law causes of action. We affirm.

Facts and Procedural Background

Fiol began to work for Activision, Inc. on January 5, 1994. Fid’s immediate supervisor was Sean Silva, whose immediate supervisor was Doellstedt. Silva routinely engaged in sexual jokes and innuendoes at Fid’s expense. Silva grabbed Fid’s buttocks and crotch, rubbed his pelvic area against Fid’s back, kissed Fiol, forced Fiol’s face into his crotch and demanded oral copulation. Silva told Fiol that in order to advance in Activision, Fiol would have to submit to his sexual advances.

In February 1994, Fiol complained to Doellstedt of Silva’s sexual harassment. Fiol complained again to Doellstedt in May 1994 and on June 6,1994. Nothing was done to investigate Fid’s sexual harassment complaints against Silva or control Silva’s behavior. On June 6, 1994, Fiol was terminated by Activision.

Fiol filed sexual harassment charges with the Department of Fair Employment and Housing (DFEH)¹ and obtained a right to sue letter. On December 2, 1994, Fiol filed a complaint against Silva, Doellstedt and Activision² alleging 10 causes of action: (1) unlawful sexual harassment under FEHA; (2) unlawful sex discrimination under FEHA; (3) wrongful termination under FEHA; (4) assault; (5) battery; (6) common law invasion of privacy; (7) invasion of privacy under the California Constitution; (8) defamation; (9) intentional infliction of emotional distress; and (10) negligent supervision. Fid’s action against Doellstedt was based solely on Doellstedt’s failure to “investigate, control, monitor, discipline or restrain” Silva, even after the sexual harassment had been reported to him. The complaint also included standard agency, aiding and abetting and conspiracy allegations.

On February 15, 1995, Doellstedt moved for judgment on the pleadings. On March 8, 1995, the trial court granted the motion for judgment on the pleadings without leave to amend. A judgment of dismissal was entered. Fiol appealed.

Discussion

I. Standard of Review

A motion for judgment on the pleadings may be made on the ground that the pleading at issue fails to state facts sufficient to constitute a legally cognizable claim or defense. (Colberg, Inc. v. California (1967) 67 Cal.2d 408, 411-412 [62 Cal.Rptr. 401, 432 P.2d 3]; Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586 [218 Cal.Rptr. 388]; Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877 [168 Cal.Rptr. 361]; Code Civ. Proc., § 430.10, subd. (e).) Our review is guided by the same rules governing the review of the sustaining of a general demurrer. “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].)

II. FEHA

The Fair Employment Practice Act, former Labor Code section 1410 et seq., was enacted in 1959. (Stats. 1959, ch. 121, § 1, p. 1999 et seq.) It was recodified in 1980 as part of the FEHA. (Stats. 1980, ch. 992, § 4, p. 3140 et seq.) The FEHA combined the now-repealed Fair Employment Practice Act and the now-repealed Rumford Fair Housing Act. (Health & Saf. Code, former § 35700 et seq.) Under the FEHA and its predecessor statutes, freedom from employment discrimination on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, and sex is a civil right. (Gov. Code, § 12921.)³ Discrimination on the specified grounds is against public policy (§ 12920) and an unlawful employment practice (§ 12940). The FEHA is to be liberally construed to effectuate its purposes. (§ 12993, subd. (a).)

“The public policy underlying the FEHA is ‘to prohibit harassment and discrimination in employment on the basis of any protected classification. Such conduct whether intentional or unintentional is a violation of the civil rights of California citizenry and has been shown to decrease productivity in the workforce. . . .’ [Citation.]” (Matthews v. Superior Court (1995) 34 Cal.App.4th 598, 602 [40 Cal.Rptr.2d 350].) ‘“[T]he practice of denying employment opportunity and discriminating in the terms of employment for such reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance [sic], and substantially and adversely affects the interest of employees, employers, and the public in general. . . . [<JD • • . PHI It is the purpose of [the FEHA] to provide effective remedies which will eliminate such discriminatory practices.’ [Citation.]” (Ibid.)

In addition to discrimination, the FEHA prohibits harassment on the basis of sex and other protected classifications. “It shall be an unlawful employment practice . . . [DD • • • HD [f]or an employer ... or any other person, because of . . . sex, ... to harass an employee .... Harassment of an employee ... by an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An entity shall take all reasonable steps to prevent harassment from occurring.” (§ 12940, subd. (h)(1).) “For purposes of this subdivision only, ‘employer’ means any person regularly employing one or more persons, or any person acting as an agent of an employer, directly or indirectly ....’’ (Id., subd. (h)(3)(A).)⁴ “It shall be an unlawful employment practice . . . [<]Q . . . FID [f]or an employer ... to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Id., subd. (i).) “It shall be an unlawful employment practice . . . FID . . . Ffl] [f]or any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.” (Id. at subd. (g).) Sexual harassment includes gender harassment. (Id., subd. (h)(3)(C).) Gender harassment includes sexual harassment by a member of the same sex. (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1416-1418 [26 Cal.Rptr.2d 116].)

Prior to 1977, no express statutory language allowed an aggrieved employee to recover monetary damages in court for discrimination or harassment. In 1977, the Legislature enacted Labor Code section 1422.2 (Stats. 1977, ch. 1188, § 34, p. 3911), now section 12965, subdivision (b), expanding the scope of remedies expressly available to a person subject to unlawful discrimination or harassment by permitting a court action for the recovery of monetary damages. Section 12965, subdivision (b) requires the DFEH to issue a “right-to-sue” letter if it issues no accusation within 150 days after the filing of a complaint. The section authorizes the complainant to bring a civil action under the FEHA “against the person [or] employer . . . named in the verified complaint [previously filed with the DFEH].” (§ 12965, subd. (b).)

HI. Aiding and Abetting

The FEHA does not provide a definition of “aiding and abetting.”* ***⁵ It is appropriate, therefore, to consider the common law definition of aiding and abetting. “Liability may ... be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person.” (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 846 [33 Cal.Rptr.2d 438]; Rest.2d Torts, § 876.) Mere knowledge that a tort is being committed and the failure to prevent it does not constitute aiding and abetting. (Cf. CALJIC No. 3.01.) “As a general rule, one owes no duty to control the conduct of another . . . .” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203 [185 Cal.Rptr. 252, 649 P.2d 894]; Michael R. v. Jeffrey B. (1984) 158 Cal.App.3d 1059, 1068 [205 Cal.Rptr. 312]; Baldwin v. Zoradi (1981) 123 Cal.App.3d 275, 282-283 [176 Cal.Rptr. 809].) More specifically, a supervisor is not liable to third parties for the acts of his or her subordinates. (Civ. Code, § 2351; Malloy v. Fong (1951) 37 Cal.2d 356, 378-379 [232 P.2d 241].)

We are aware of no authority for the proposition that a supervisory employee is personally liable, as an aider and abettor of the wrongdoer, to a subordinate for failing to prevent the misconduct of another subordinate. In the first place, mere failure to act does not constitute the giving of “substantial assistance or encouragement” to the tortfeasor. Moreover, a supervisory employee owes no duty to his or her subordinates to prevent sexual harassment in the workplace. That is a duty owed only by the employer. (§ 12940, subds. (h)(1) and (i); cf. Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511 [28 Cal.Rptr.2d 475, 869 P.2d 454].) We conclude a supervisory employee is not personally liable under the FEHA, as an aider and abettor of the harasser, for failing to take action to prevent the sexual harassment of a subordinate employee.

We next consider whether the supervisor is personally liable under the FEHA, as an aider and abettor of the employer, for failing to prevent sexual harassment. We conclude the supervisor is not. An employee cannot aid and abet his or her corporate employer. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 77-79 [53 Cal.Rptr.2d 741].) A corporation can act only through its employees; thus, an employee acting on behalf of the employer cannot be acting in concert with the employer, as there is in law only a single actor. (Id. at pp. 77-78.) Similarly, under the agent’s immunity rule, an agent is not liable for conspiring with the principal when the agent is acting in an official capacity on behalf of the principal. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd., supra, 7 Cal.4th at p. 512, fn. 4.)

IV. Personal Liability of a Supervisor Under the FEHA

Two recent cases have considered the personal liability of a supervisor under the FEHA for sexual harassment. In Page v. Superior Court (1995) 31 Cal.App.4th 1206 [37 Cal.Rptr.2d 529], the Third District considered whether a supervisor, who sexually harassed an employee, could be personally liable under the FEHA for damages. The Third District concluded that a harassing supervisor was a “person” within the meaning of section 12940, subdivision (h)(1) expressly prohibited from sexually harassing an employee. The Third District concluded further that a civil action for monetary damages could be brought against any “person” who had violated the FEHA. The Third District held that a harassing supervisor was personally liable for sexual harassment of an employee in violation of the FEHA.⁶

In Matthews v. Superior Court, supra, 34 Cal.App.4th 598, this division considered whether a supervisor could be personally liable under the FEHA for aiding and abetting the harassing employee. We agreed with the Page court that a “person” incurred liability for violations of the FEHA and held that a supervisor who aided and abetted the harasser was such a “person.” In Matthews, we did not consider the nature of the conduct which would be sufficient to constitute aiding and abetting. We did, however, plainly suggest that mere inaction would be sufficient. In this opinion, we make clear that mere inaction by a nonharassing supervisor does not constitute aiding and abetting.

The case and statutory authority set forth three clear rules. First, under Page, a supervisor who personally engages in sexually harassing conduct is personally liable under the FEHA. Second, under Matthews, if the supervisor participates in the sexual harassment or substantially assists or encourages continued harassment, the supervisor is personally liable under the FEHA as an aider and abettor of the harasser. Third, under the FEHA, the employer is vicariously and strictly liable for sexual harassment by a supervisor. In this case, however, we are concerned with a nonharassing second-tier supervisor who fails to take action when an employee complains to the nonharassing second-tier supervisor of sexual harassment by the employee’s immediate supervisor.

Sound policy reasons exist for treating such a nonharassing supervisor differently than a harassing supervisor. Individual supervisory employees should be placed at risk of personal liability for personal conduct constituting sexual harassment, either directly as the actual harasser or indirectly as an aider and abettor of the harasser. Such individual supervisory employees should not be placed at risk of personal liability, however, for personnel management decisions which have been delegated to the supervisor by the employer, such as deciding whether to investigate or take action on a complaint of sexual harassment.

V. Agent of the Employer

The FEHA does not define “agent.”⁷ Therefore, it is appropriate to consider general principles of agency law. An agent is one who represents a principal in dealings with third persons. (Civ. Code, § 2295.) An agent is a person authorized by the principal to conduct one or more transactions with one or more third persons and to exercise a degree of discretion in effecting the purpose of the principal. (Gipson v. Davis Realty Co. (1963) 215 Cal.App.2d 190, 205-206 [30 Cal.Rptr. 253].) A supervising employee is an agent of the employer. (See Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th at pp. 65-66.)

Under section 12940, subdivision (h)(3)(A), any person acting as an agent of the employer is an employer for purposes of the FEHA. This statutory language is ambiguous and susceptible of two reasonable constructions. (Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th at pp. 65-66.) Under the first construction, every supervisory employee is an “employer” for purposes of the FEHA and therefore may be personally liable as an employer. Under a second construction, an employer may be vicariously liable under the FEHA for acts of its supervisory employees constituting violations of the FEHA. (Ibid.) In fact, the FEHA provides that an employer is strictly liable for the harassment of an employee by an agent or supervisor, while the employer is only liable for harassment of an employee by nonagents or nonsupervisors if the employer, its agents or supervisors know or should know of the harassing conduct and the employer fails to take immediate and appropriate corrective action. (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 415 [27 Cal.Rptr.2d 457]; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608, fn. 6 [262 Cal.Rptr. 842].)

We believe the agent of the employer language is more reasonably susceptible of the vicarious liability construction for a number of compelling reasons. (Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th at p. 66.) First, such a construction has been adopted by a “cléar and growing consensus” of the federal circuit courts which have examined the same language in title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), the Age Discrimination in Employment Act (29 U.S.C. § 621 et seq.), and the Americans with Disabilities Act (42 U.S.C. § 12111 et seq.). (Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th at pp. 66-71; Tomka v. Seiler Corp. (2d Cir. 1995) 66 F.3d 1295, 1313-1316; Dici v. Com. of Pa. (3d Cir. 1996) 91 F.3d 542, 552; Birkbeck v. Marvel Lighting Corp. (4th Cir. 1994) 30 F.3d 507, 510; Grant v. Lone Star Co. (5th Cir. 1994) 21 F.3d 649, 651-653; U.S. E.E.O.C. v. AIC Security Investigations, Ltd. (7th Cir. 1995) 55 F.3d 1276, 1279-1282; Miller v. Maxwell’s Intern. Inc. (9th Cir. 1993) 991 F.2d 583, 587-588; Haynes v. Williams (10th Cir. 1996) 88 F.3d 898, 899-901; Cross v. State of Ala. (11th Cir. 1995) 49 F.3d 1490, 1504; Gary v. Long (D.C. Cir. 1995) 59 F.3d 1391, 1399; cf. Lenhardt v. Basic Institute of Technology, Inc. (8th Cir. 1995) 55 F.3d 377, 380-381 [relying on consensus of federal authority to conclude an analogous state law does not provide for individual liability].)

Second, imposition of personal liability is contrary to general principles of agency law. Ordinarily, an agent is not liable for acts of a sub-agent. (Civ. Code, § 2351 [“A sub-agent, lawfully appointed, represents the principal in like manner with the original agent; and the original agent is not responsible to third persons for the acts of the sub-agent.”].) In addition, ordinarily an agent is not individually liable for acts undertaken on behalf of the principal which are within the legitimate scope of delegated personnel management authority. (Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th at p. 79, fn. 27; Applied Equipment Corp. v. Litton Saudi Arabia Ltd., supra, 7 Cal.4th at p. 512, fn. 4.) An agent is responsible only for his or her own wrongdoing. (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 504-505 [229 Cal.Rptr. 456, 723 P.2d 573, 59 A.L.R.4th 447]; James v. Marinship Corp. (1944) 25 Cal.2d 721, 742-743 [155 P.2d 329, 160 A.L.R. 900]; Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal.App.3d 581, 599 [94 Cal.Rptr. 200]; Bayuk v. Edson (1965) 236 Cal.App.2d 309, 320 [46 Cal.Rptr. 49]; Rest.2d Agency, § 343, p. 105; Civ. Code, § 2343, subd. 3.)

Third, imposition of personal liability on a supervisor for failing to take action would only marginally increase the likelihood of recovery of damages or prevention of such inaction in the future. (Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th at pp. 74-76.) Generally, the employer would be responsible for the supervisor’s share of damages. (Lab. Code, § 2802.) In any event, the employer would remain liable. (Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th at pp. 76-77.) Moreover, an employer sued because of the inaction of a supervisor would almost certainly discipline that supervisor and take pains to ensure unjustified inaction does not occur in the future. (Ibid.)

Finally, if the Legislature had intended such a major shift in the law of agency, it would have expressly so stated. It certainly has not so stated to date. If the Legislature intends to impose personal liability on nonharassing supervisors for failure to take action on sexual harassment complaints, it should expressly amend the statute to so provide. Such a determination rests on diverse public policy considerations, such as the availability and cost of insurance coverage, not within the purview of an appellate court, which is necessarily limited to the presentations of the parties and its own independent research.

We recognize that the FEHC has used broad language in its published decisions imposing personal liability on individuals with authority to hire and fire or to control the conditions of employment. The FEHC has stated that personal liability may be imposed on any such individuals who participate in the harassment or fail to take action upon learning of the harassment. However, a closer scrutiny of the FEHC decisions reveals that personal liability has actually been imposed only on the actual harasser or one who participated in the harassment. We have found no FEHC decision in which personal liability was imposed solely on the basis of failure to take action. (DFEH v. Right Way Homes, Inc. (1990) No. 90-16, FEHC Precedential Decs. 1990-1991, CEB 5.1, p. 15 [executive director was primary harasser]; DFEH v. Madera County (1990) No. 90-03, FEHC Precedential Decs. 1990-1991, CEB 1, p. 27 [immediate supervisor sexually assaulted complainant]; DFEH v. Huncot Properties (1988) No. 88-21, FEHC Precedential Decs. 1988-1989, CEB 8, p. 12, mod. (1991) No. 91-10, FEHC Precedential Decs. 1990-1991, CEB 8 [supervisor sexually harassed and assaulted complainant]; DFEH v. Del Mar Avionics (1985) No. 85-19, FEHC Precedential Decs. 1984-1985, CEB 16, pp. 24-25 [supervisor harassed complainant]; DFEH v. La Victoria Tortilleria, Inc. (1985) No. 85-04, FEHC Precedential Decs. 1984-1985, CEB 13, p. 19 [supervisor sexually harassed employee]; DFEH v. Hart and Starkey, Inc. (1984) No. 84-23, FEHC Precedential Decs. 1984-1985, CEB 9, pp. 17-19 [chief executive officer participated in and tacitly approved sexual harassment]; DFEH v. Bee Hive Answering Service (1984) No. 84-16, FEHC Precedential Decs. 1984-1985, CEB 8, pp. 14-16 [partner perpetrated the harassment].)⁸

Our conclusion is buttressed by the analysis of Division Two of this district in Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th 55, an age discrimination case. Division Two concluded “it was the intent of the Legislature to place individual supervisory employees at risk of personal liability for personal conduct constituting harassment, but that it was not the intent of the Legislature to place individual supervisory employees at risk of personal liability for personnel management decisions later considered to be discriminatory. We conclude that the Legislature’s differential treatment of harassment and discrimination is based on the fundamental distinction between harassment as a type of conduct not necessary to a supervisor’s job performance, as contrasted with business or personnel management decisions —which might later be considered discriminatory—as inherently necessary to performance of a supervisor’s job.” (Id. at pp. 62-63.) While the Janken court considered the distinction between harassment and discrimination, its analysis is equally relevant to the distinction between harassing and nonharassing supervisors. A nonharassing supervisor who fails to take action on a sexual harassment complaint by a subordinate has not engaged in personal conduct constituting harassment, but rather has made a personnel management decision which in retrospect may be considered to be inadequate or improper.

VI. Conclusion of the FEHA Discussion

It is an unlawful employment practice for a supervisor to sexually harass an employee. If a supervisor sexually harasses an employee, the harassing supervisor is personally liable for money damages and the employer is vicariously and strictly liable for the harassment. If a supervisor aids and abets sexual harassment of an employee, the supervisor is personally liable for money damages. A supervisor who, without more, fails to take action to prevent sexual harassment of an employee is not personally liable as an aider and abettor of the harasser, an aider and abettor of the employer or an agent of the employer.

A supervisor does not aid and abet a harasser by mere inaction. A supervisor does not aid and abet the employer by acts constituting personnel management decisions. The “agent of an employer” language in section 12940, subdivision (h)(3)(A) does not impose personal liability on a non-harassing supervisor, but rather imposes on the employer vicarious liability for the supervisor’s acts. Such a construction of this ambiguous statutory language is reasonable and consistent with the legislative purpose and intent behind the FEHA. It is also consistent with general principles of agency law and federal appellate decisions interpreting parallel provisions of federal law.

VII.-IX.

*

Disposition

The judgment is affirmed. Doellstedt is to recover his costs on appeal.

Armstrong, J., concurred.

1 The DFEH is an administrative body whose functions include investigation of complaints, conciliation, redress of discrimination, and issuance and prosecution of accusations before the Fair Employment and Housing Commission. (Gov. Code, §§ 12930, 12965, subd. (a), 12969.)

2 Neither Silva nor Activision is a party to this appeal.

3 All statutory references are to the Government Code unless otherwise indicated.

4 An employer is otherwise generally defined under the FEHA as a person regularly employing five or more persons or a person acting as an agent of such person. (§§ 12926, subd. (d), 12940, subd. (h)(4).)

5 The Fair Employment and Housing Commission (FEHC) serves an adjudicatory and rulemaking function; it hears accusations issued and prosecuted by the DFEH; it also adopts regulations. (§ 12935.) The FEHC has adopted a regulation describing aiding and abetting activity: “Aiding and Abetting. [QD (a) Prohibited Practices. HI (1) It is unlawful to assist any person or individual in doing any act known to constitute unlawful employment discrimination. [IQ (2) It is unlawful to solicit or encourage any person or individual to violate the [FEHA], whether or not the [FEHA] is in fact violated. [QQ (3) It is unlawful to coerce any person or individual to commit unlawful employment discrimination with offers of cash, other consideration, or an employment benefit, or to impose or threaten to impose any penalty, including denial of an employment benefit. [QQ (4) It is unlawful to conceal or destroy evidence relevant to investigations initiated by the [FEHC] or the [DFEH] or their staffs. HQ (5) It is unlawful to advertise for employment on a basis prohibited in the [FEHA], HI (b) Permissible Practices. [f¡ (1) It shall not be unlawful, without more, to have been present during the commission of acts amounting to unlawful discrimination or to fail to prevent or report such acts unless it is the normal business duty of the person or individual to prevent or report such acts. [QQ (2) It shall not be unlawful to maintain good faith lawful defenses or privileges to charges of discrimination.” (Cal. Code Regs., tit. 2, § 7287.7.) Paragraph (b)(1) of the FEHC aiding and abetting regulation describes as a “permissible practice” the failure to prevent or report sexual harassment “unless it is the normal business duty of the person or individual to prevent or report such acts.” It might be inferred from this language that it constitutes a “prohibited practice” to fail to prevent sexual harassment if it is the normal business duty of the person or individual to prevent or report such acts. This conduct, however, is not described in paragraph (a) which sets forth the “prohibited practices” constituting aiding and abetting. Accordingly, we conclude the regulation is silent on this issue. To the extent the regulation provides that mere inaction may constitute aiding and abetting, we disagree.

6 In Page, the appellate court expressly refused to decide two questions: the personal liability of the harassing supervisor as an agent of the employer and the personal liability of harassing nonsupervisory employees, i.e„ coworkers. (Page v. Superior Court, supra, 31 Cal.App.4th at p. 1210.)

7 Nor is the term “agent” defined in FEHC regulations.

8 We also recognize that a number of appellate decisions in this state have involved individual defendants in actions under the FEHA in which no argument against personal liability was raised. (Caldwell v. Montoya (1995) 10 Cal.4th 972, 978-979, fn. 3 [42 Cal.Rptr.2d 842, 897 P.2d 1320].) It is sufficient to state that those decisions do not constitute authority for issues which were not raised or resolved.

See footnote, ante, page 1318.