Failure To Exhaust Administrative Remedies Under FEHA Does Not Affect Subject Matter Jurisdiction Of Court And No Need To Prove Employer Had 5 Or More Employees Under FEHA For Harassment Based Upon Sex.

Apparently plaintiff did not like being hugged and patted on her behind by her boss. After a judge awarded plaintiff $60,000 against her former employer for sexual harassment, the defendant employer appealed, arguing plaintiff never proved she exhausted her administrative remedies or that the employer had at least five employees. The appellate court affirmed, stating:  “We therefore disagree with defendants’ underlying premise that exhaustion of administrative remedies affects the fundamental subject matter jurisdiction of the court. Prior to submission of the case for decision, defendants did not request dismissal of the FEHA causes of action based on plaintiff’s failure to exhaust. Defendants thereby forfeited any right they may have had (in the abstract) for a judgment of dismissal on the FEHA causes of action.” With regard to defendant employer’s argument about the number of employees, the appellate court was also unimpressed, stating: “forfeited any right they may have had (in the abstract) for a judgment of dismissal on the FEHA causes of action.” (Kim v. Konad USA Distribution, Inc.  (Cal. App. Fourth Dist., Div. 3; June 12, 2014)226 Cal.App.4th 1336, [172 Cal.Rptr.3d 686].)