FEHA makes it unlawful for “any person to aid, abet, incite, compel, or coerce” a violation, under Government Code section 12940(i). Plaintiffs use the clause to sue supervisors, business partners, and parent or franchisor companies. The courts have read it narrowly. Liability requires knowledge that the conduct violated FEHA and substantial help in carrying it out. A manager who only failed to stop harassment isn’t an aider and abettor.
What does section 12940(i) prohibit?
Helping someone else violate FEHA. The statute makes it an unlawful employment practice “For 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.” Because it applies to “any person,” it can reach people and companies that are not the plaintiff’s employer.
FEHA doesn’t define the term. In Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, the Court of Appeal borrowed the tort definition: liability may be imposed on one who “knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act.” Both elements matter, and both are frequently missing from the complaint.
Can a supervisor be liable for not stopping harassment?
No. That’s the holding of Fiol. The court said “Mere knowledge that a tort is being committed and the failure to prevent it does not constitute aiding and abetting,” and concluded that “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.”
The opinion went further. It rejected the idea that the supervisor aided the employer: “An employee cannot aid and abet his or her corporate employer.” The court explained that a supervisor who personally harasses, or who “substantially assists or encourages continued harassment,” can be personally liable, but Fiol held that “A supervisor does not aid and abet a harasser by mere inaction.”
Inaction still has consequences for the company. The employer may face a separate claim for failing to prevent harassment, and a second-level manager who ignored complaints is often the key witness on that claim. So Fiol protects the individual, not necessarily the business.
Can a company that isn’t the employer be sued for aiding and abetting?
Yes, but the plaintiff must plead real facts. In Smith v. BP Lubricants USA Inc. (May 12, 2021), a published opinion, a Jiffy Lube employee sued Castrol’s parent company and the Castrol employee who led a product presentation at his workplace, alleging racist remarks during it. The court agreed that “individuals and entities who are not the plaintiff’s employer may be liable under FEHA for aiding and abetting the plaintiff’s employer’s violation of FEHA.”
The court then set out the test. A nonemployer is liable “only if” the employer subjected the plaintiff to discrimination and harassment, the nonemployer “knew that” the employer’s conduct “violated FEHA,” and it gave the employer “substantial assistance or encouragement.” The FEHA claim failed. The opinion affirmed the order sustaining the demurrer to it without leave to amend, saying the complaint “has no facts suggesting concerted activity” among the employer, the supplier, and the presenter. Other claims against the supplier survived, so the FEHA ruling didn’t end the case.
That matters for businesses in shared relationships: franchisors, staffing agencies, clients of staffing agencies, parent companies, and vendors. An aiding-and-abetting count added because the defendant has deeper pockets, without facts showing knowledge and help, is a good target for a demurrer.
How do defendants respond to an aiding and abetting claim?
By testing each element. The first question is whether there is an underlying FEHA violation by someone else at all, since aiding and abetting is derivative. The second is knowledge: what the defendant actually knew, and when. The third is substantial assistance: what the defendant did, beyond being present or doing business with the employer.
The facts often cut against the plaintiff. A franchisor that sets brand standards but doesn’t hire, fire, or schedule a franchisee’s workers rarely knows about an individual employee’s treatment. A staffing client that removed a worker from an assignment for documented performance reasons isn’t assisting discrimination by the agency. Getting those facts into the record early, through declarations and the contracts between the businesses, frames the motion.
Individual defendants should also consider separate counsel. A manager accused of aiding and abetting may have defenses that differ from the company’s, and an insurance policy may or may not cover them.
Aiding and abetting claims and how they’re tested
| Defendant | Typical theory | Key defense point | Authority |
|---|---|---|---|
| Second-level supervisor | Ignored harassment complaints | Inaction isn’t aiding and abetting | Fiol |
| Supervisor and employer | Supervisor aided the company | An employee can’t aid and abet the employer | Fiol |
| Product supplier or its employee | Joined in the employer’s harassment | No knowledge, no substantial assistance | Smith v. BP Lubricants |
| Staffing client or vendor | Encouraged the employer’s decision | Facts must show concerted action | Smith v. BP Lubricants |
| Supervisor who joined in harassment | Active participation | Personal liability is possible | Fiol; Gov. Code 12940(i) |
When an aiding and abetting claim names your company or a manager
- Preserve communications between the businesses or individuals named, including contracts and any emails or texts about the plaintiff.
- Calendar the response deadline, check whether an arbitration agreement covers each defendant, and give notice under any EPLI policy that may cover the individuals.
- Identify each named person’s actual role in the decisions the plaintiff challenges, and make sure no one contacts the plaintiff or treats them differently while the case is pending.
- Pull the agreements that define the relationship, such as franchise, staffing, or services contracts, and any indemnity terms.
- Have counsel evaluate a demurrer to the aiding-and-abetting count and whether the individuals need separate representation.
The firm’s page on defending employment lawsuits in California explains how it handles multi-defendant FEHA cases. A related post covers FEHA agent liability for business-entity vendors.
Aiding and abetting questions from employers
Is aiding and abetting the same as harassing?
No. A person who personally harasses can be liable directly under FEHA’s harassment provision. Aiding and abetting covers someone who knowingly helps another person or company commit a violation. Plaintiffs often plead both against the same supervisor, but the elements differ, and a count that duplicates a direct claim adds little.
Can a manager be liable for aiding and abetting a termination?
Generally not for carrying out the employer’s own decision. Fiol held that “A supervisor does not aid and abet the employer by acts constituting personnel management decisions.” Firing and discipline decided on the company’s behalf are the employer’s acts.
Does the plaintiff need to name the aider in the CRD complaint?
Generally yes. A FEHA civil action runs against the persons and employers named in the administrative complaint. A defendant added to the lawsuit who wasn’t named before the CRD may have an exhaustion defense, depending on what the administrative complaint said.
Can our company be liable for a customer who harasses an employee?
That’s usually a direct claim against the employer, not aiding and abetting. FEHA makes employers responsible for nonemployee harassment when the company knew or should have known and failed to take corrective action. The firm covers that in a separate post on customer harassment.
If your company or a manager has been named as an aider and abettor
If a FEHA complaint names your company or one of its managers on an aiding-and-abetting theory, the facts about knowledge and assistance usually decide whether the claim survives the pleadings. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving harassment and discrimination. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statute is Government Code section 12940. The opinions are Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318 and Smith v. BP Lubricants USA Inc. (Cal. Ct. App. May 12, 2021).
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.