FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTINA RAINES; DARRICK FIGG, 

individually and on behalf of all others 

similarly situated,

Plaintiffs-Appellants,

v.

U.S. HEALTHWORKS MEDICAL GROUP, 

a corporation; SELECT MEDICAL 

HOLDINGS CORPORATION, a 

corporation; CONCENTRA GROUP 

HOLDINGS LLC, a corporation; U.S.

HEALTHWORKS, INC., a corporation; 

SELECT MEDICAL CORPORATION, a 

corporation; CONCENTRA, INC., a 

corporation; CONCENTRA PRIMARY 

CARE OF CALIFORNIA, a medical 

corporation; OCCUPATIONAL HEALTH 

CENTERS OF CALIFORNIA, a medical 

corporation; DOES 4 and 8 through 10, 

inclusive,

Defendants-Appellees.

No. 21-55229

D.C. No.

3:19-cv-01539-

DMS-DEB

ORDER 

CERTIFYING 

QUESTION TO 

THE SUPREME 

COURT OF 

CALIFORNIA

Filed March 16, 2022
2 RAINES V. U.S. HEALTHWORKS MEDICAL GROUP

Before: Johnnie B. Rawlinson and Paul J. Watford, Circuit 

Judges, and Jed S. Rakoff,

* District Judge.

Order

SUMMARY**

California Law

The panel certified to the Supreme Court of California 

the following question:

Does California’s Fair Employment and 

Housing Act, which defines “employer” to 

include “any person acting as an agent of an 

employer,” Cal. Gov’t Code § 12926(d), 

permit a business entity acting as an agent of 

an employer to be held directly liable for 

employment discrimination?

* The Honorable Jed S. Rakoff, United States District Judge for the 

Southern District of New York, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
RAINES V. U.S. HEALTHWORKS MEDICAL GROUP 3

ORDER

We respectfully ask the Supreme Court of California to 

exercise its discretion to decide the certified question set 

forth in section II of this order.

I. Administrative Information

We provide the following information in accordance 

with California Rule of Court 8.548(b)(1). The caption of 

this case is:

No. 21-55229

KRISTINA RAINES; DARRICK FIGG, 

individually and on behalf of all others 

similarly situated, Plaintiffs-Appellants,

v.

U.S. HEALTHWORKS MEDICAL 

GROUP, a corporation; SELECT MEDICAL 

HOLDINGS CORPORATION, a 

corporation; CONCENTRA GROUP 

HOLDINGS LLC, a corporation; U.S. 

HEALTHWORKS, INC., a corporation; 

SELECT MEDICAL CORPORATION, a 

corporation; CONCENTRA, INC., a 

corporation; CONCENTRA PRIMARY 

CARE OF CALIFORNIA, a medical 

corporation; OCCUPATIONAL HEALTH 

CENTERS OF CALIFORNIA, a medical 

corporation; DOES 4 and 8 through 10, 

inclusive, Defendants-Appellees.
4 RAINES V. U.S. HEALTHWORKS MEDICAL GROUP

The names and addresses of counsel for the parties are:

For Plaintiffs-Appellants Kristina Raines and 

Darrick Figg, individually and on behalf of 

all others similarly situated: Nicholas A. 

Carlin, R. Scott Erlewine, Kyle P. O’Malley, 

and Leah Romm, Phillips, Erlewine, Given & 

Carlin, LLP, 39 Mesa Street, Suite 201, San 

Francisco, California 94129.

For Defendants-Appellees U.S. Healthworks 

Medical Group, Select Medical Holdings 

Corporation, Concentra Group Holdings 

LLC, U.S. Healthworks, Inc., Select Medical 

Corporation, Concentra, Inc., Concentra 

Primary Care of California, and Occupational 

Health Centers of California: Raymond A. 

Cardozo, Reed Smith, LLP, 101 2nd Street, 

Suite 1800, San Francisco, CA 94105; 

Cameron O’Brien Flynn and Timothy L. 

Johnson, Ogletree, Deakins, Nash, Smoak & 

Stewart, P.C., 4370 La Jolla Village Drive, 

Suite 990, San Diego, California 92122.

For Defendants-Appellees Does 4 and 8 

through 10, inclusive: Raymond A. Cardozo, 

Reed Smith, LLP, 101 2nd Street, Suite 1800, 

San Francisco, California 94105.

We designate Kristina Raines and Darrick Figg as the 

petitioners if our request for certification is granted. They 

are the appellants before our court.
RAINES V. U.S. HEALTHWORKS MEDICAL GROUP 5

II. Certified Question

We certify to the Supreme Court of California the 

following question of state law:

Does California’s Fair Employment and 

Housing Act, which defines “employer” to 

include “any person acting as an agent of an 

employer,” Cal. Gov’t Code § 12926(d), 

permit a business entity acting as an agent of 

an employer to be held directly liable for 

employment discrimination?

We certify this question pursuant to California Rule of 

Court 8.548. The answer to this question may determine the 

outcome of the appeal currently pending in our court. We 

will accept and follow the decision of the California 

Supreme Court on this question. Our phrasing of the 

question should not restrict the California Supreme Court’s 

consideration of the issues involved.

III. Statement of Facts

Plaintiffs in this case represent themselves and a putative 

class of current and former job applicants. They seek to hold 

defendants, providers of pre-employment medical 

screenings, liable for asking allegedly invasive and 

impermissible questions during medical screening exams. 

The crucial question of state law is whether the Fair 

Employment and Housing Act (FEHA) allows employees to 

hold a business entity directly liable for unlawful conduct 

when the business entity acted only as the agent of an

employer, rather than as an employer itself.

It is generally illegal under California law for an

employer (1) to require “any medical or psychological 
6 RAINES V. U.S. HEALTHWORKS MEDICAL GROUP

examination . . . [or] inquiry of an applicant,” (2) to make

“any inquiry whether an applicant has a mental disability or 

physical disability or medical condition,” or (3) to make 

“any inquiry regarding the nature or severity of a physical 

disability, mental disability, or medical condition.” Cal. 

Gov’t Code § 12940(e)(1). Employers may, however, 

require applicants to undergo medical or psychological 

examinations and make related inquiries after an 

employment offer has been made, provided that the 

examination or inquiry is “job related and consistent with 

business necessity.” Id. § 12940(e)(3).

Plaintiffs allege that they received job offers from 

employers that were conditioned on successful completion 

of a pre-employment medical screening. Defendants, who 

collectively are the largest providers of occupational health 

services in California, conducted these screenings on behalf 

of employers in the State. Plaintiffs allege that they were 

required by their employers to use defendants’ facilities and 

services, and that defendants’ recommendations regarding 

an applicant’s suitability for the position were adopted as a 

matter of course.

The crux of plaintiffs’ complaint is that defendants, 

while conducting the screening exams on behalf of 

plaintiffs’ prospective employers, asked questions that

violated FEHA. Specifically, plaintiffs allege that 

defendants required applicants to complete a written 

questionnaire that asked numerous health-focused and nonjob-related questions, including whether the applicant has or 

ever had: venereal disease; painful or irregular vaginal 

discharge or pain; problems with menstrual periods; 

irregular menstrual periods; penile discharge, prostate 

problems, or genital pain or masses; cancer; mental illness;

HIV; permanent disabilities; painful or frequent urination;

hair loss; hemorrhoids; diarrhea; black stool; constipation;
RAINES V. U.S. HEALTHWORKS MEDICAL GROUP 7

tumors; an organ transplant; a stroke; or a history of tobacco 

or alcohol use. Defendants also asked whether job 

applicants were pregnant, asked about all medications they 

were taking, and required that they reveal information about 

prior on-the-job injuries or illnesses. Positive responses on 

the questionnaire were then followed by additional verbal 

questioning.

The two named plaintiffs in this case, Kristina Raines 

and Darrick Figg, both underwent this medical screening

exam after receiving job offers from prospective employers. 

Raines received a job offer from Front Porch Communities 

and Services, a company that provides housing and services 

to California residents, to work as a food service aide. The 

offer was conditioned upon Raines’s passing a preemployment medical screening exam administered by 

defendants. Raines alleges that she answered all questions 

on the written questionnaire and during the verbal follow-up,

except for the question about the date of her last menstrual 

period. The exam was terminated after Raines repeatedly

declined to answer the question, and her job offer was 

subsequently revoked by Front Porch.

Figg received a job offer from the San Ramon Valley 

Fire Protection District to serve as a member of the 

Volunteer Communication Reserve. Figg’s offer was also 

conditioned on his passing a pre-employment medical 

screening exam administered by defendants. Figg, unlike 

Raines, answered all questions, although he allegedly found 

many of them to be inappropriate, intrusive, and 

inapplicable. He was subsequently deemed medically 

acceptable and officially hired for the position.

After her job offer was revoked, Raines filed an 

individual action against Front Porch and a subset of the 

defendants in California state court. She subsequently filed 
8 RAINES V. U.S. HEALTHWORKS MEDICAL GROUP

a first amended complaint adding claims on behalf of a class 

of similarly situated job applicants, which allowed 

defendants to remove the suit to federal court under the Class 

Action Fairness Act, 28 U.S.C. § 1332(d). Following 

removal, Raines settled with Front Porch and filed a second 

amended complaint that added Figg as a plaintiff and 

additional occupational health care providers as defendants. 

Defendants filed a motion to dismiss the action under 

Federal Rule of Civil Procedure 12(b)(6), which the district 

court granted with leave to amend. Plaintiffs then filed the 

operative third amended complaint. That complaint alleges 

claims for violations of FEHA, the Unruh Civil Rights Act, 

and California’s Unfair Competition Law (UCL), as well as 

a common law claim for intrusion upon seclusion.

Defendants again moved to dismiss the third amended 

complaint for failure to state a claim. The district court 

granted the motion without leave to amend as to plaintiffs’ 

FEHA, Unruh Act, and intrusion-upon-seclusion claims. As 

to the FEHA claim, the district court held that plaintiffs had 

adequately alleged that defendants were the agents of 

prospective employers, but the court determined that FEHA 

does not impose direct liability on agents. After dismissing 

their UCL claim with prejudice, plaintiffs timely appealed to 

this court. The State of California and a group of 

organizations experienced with disability discrimination 

filed amicus briefs in support of plaintiffs, and we held oral 

argument in this case on January 12, 2022.

IV. Explanation of Certification Request

Whether FEHA’s definition of the term “employer” 

includes a business entity acting as an employer’s agent is 

an unresolved question of California law with significant 

public policy implications. California has millions of 

employees who could be impacted by a decision defining the 
RAINES V. U.S. HEALTHWORKS MEDICAL GROUP 9

scope of liability for business entities acting as agents of 

their employers. To protect employees, FEHA instructs 

courts to construe its provisions “liberally” in accordance 

with its broad remedial purposes, Cal. Gov’t Code 

§ 12993(a), but it is unclear whether the Legislature intended 

FEHA’s definition of “employer” to create direct liability for 

business entities acting only as agents of an employer.

FEHA’s plain language bars discrimination, including 

the asking of certain non-job-related questions, by “any 

employer.” Id. § 12940(e). Elsewhere in the statute, 

“employer” is defined to include “any person regularly 

employing five or more persons, or any person acting as an 

agent of an employer, directly or indirectly.” Id. § 12926(d)

(emphasis added). The statute therefore appears to 

encompass direct liability for any individual or business 

entity acting as an agent of an employer. See id. § 12925(d) 

(defining “person” in FEHA to include “one or more 

individuals, partnerships, associations, corporations, limited 

liability companies, legal representatives, trustees, trustees 

in bankruptcy, and receivers or other fiduciaries”).

The California Supreme Court, however, has twice 

limited the reach of the phrase “person acting as an agent of 

an employer” in FEHA’s definition of the term “employer.” 

Both decisions exempt individuals acting as agents of an 

employer from liability, but neither addresses the issue 

before us.

In Reno v. Baird, 18 Cal. 4th 640, 643 (1998), the Court, 

relying heavily on the reasoning in Janken v. GM Hughes 

Electronics, 46 Cal. App. 4th 55 (1996), held that individual 

supervisory employees are not directly liable as agents of 

their employers for engaging in discriminatory conduct 

under FEHA. The Reno Court first acknowledged that the 

“agent” language in FEHA is amenable to more than one 
10 RAINES V. U.S. HEALTHWORKS MEDICAL GROUP

construction. Reno, 18 Cal. 4th at 647. The Court then 

reasoned that several policy concerns—the incongruity 

between holding individual nonemployers liable while 

exempting small employers, the need to avoid conflicts of 

interest and chilling effects in the workplace, and the 

collective nature of corporate decision-making—all 

supported construing the statute to exempt individual 

employees from being held directly liable as agents of their 

employers when discrimination was alleged. Id. at 651–53. 

The Court emphasized the narrowness of its decision and 

expressly declined to offer any opinion on “whether the 

‘agent’ language merely incorporates respondeat superior 

principles or has some other meaning.” Id. at 658.

Later, in Jones v. Lodge at Torrey Pines Partnership, 

42 Cal. 4th 1158 (2008), the California Supreme Court,

relying in part on the reasoning of Reno, held that 

nonemployer individuals are not liable for retaliation under 

FEHA. The Jones Court held that the same concerns 

underlying Reno applied with equal or greater force when 

the conduct at issue was retaliation. Id. at 1167–68. Again, 

however, the Court made no mention of liability for business 

entities acting as agents. Both decisions acknowledged that 

while the text of FEHA imposes liability on agents of 

employers, that language is ambiguous and subject to 

competing interpretations depending on the context.

We are therefore confronted with two potentially 

plausible interpretations of the phrase “person acting as an 

agent of an employer” in FEHA. Plaintiffs and their amici

argue that we should treat Reno and Jones as narrow 

exceptions to FEHA’s broad language and hold that business 

entities, such as defendants, are directly liable under the 

statute even when they act only in their capacity as agents of 

an employer. In their view, the policy concerns underlying 

the Reno and Jones decisions are less relevant when the 
RAINES V. U.S. HEALTHWORKS MEDICAL GROUP 11

defendant is a business entity, and the plain language of the 

statute should thus control in the absence of compelling 

evidence to the contrary. Defendants, on the other hand, 

argue that Reno and Jones articulated a definitive limitation 

on the scope of an agent’s liability under FEHA, whether the 

agent is an individual or a business entity. They insist that 

the phrase “person acting as an agent of an employer” is 

intended simply to incorporate respondeat superior 

principles and to guarantee that employees who are victims 

of discrimination have some form of recourse. Defendants 

also argue that there is no textual basis for drawing a 

distinction between individual and entity agents, which 

supports the position that decisions limiting the scope of 

individual agent liability are equally applicable to entity 

agents. Because the California Supreme Court reserved 

judgment on this issue in Reno, and because resolution of 

this issue will have significant ramifications not only for the 

litigants in this case but also for employees and employers 

throughout the State, we certify this question to the 

California Supreme Court.

V. Accompanying Materials

The clerk of this court is hereby directed to file in the 

Supreme Court of California, under official seal of the 

United States Court of Appeals for the Ninth Circuit, copies 

of all relevant briefs and excerpts of the record, and an 

original and ten copies of this order and request for 

certification, along with a certification of service on the 

parties, pursuant to California Rule of Court 8.548(c), (d).

This case is withdrawn from submission. Further 

proceedings before us are stayed pending final action by the 

Supreme Court of California. The Clerk is directed to 

administratively close this docket pending further order. 

The parties shall notify the clerk of this court within seven 
12 RAINES V. U.S. HEALTHWORKS MEDICAL GROUP

days after the Supreme Court of California accepts or rejects 

certification, and again within seven days if that court 

accepts certification and subsequently renders an opinion. 

The panel retains jurisdiction over further proceedings.