Vol. 23 No. 9- Supervisors Not Responsible For Retaliation Under FEHA

April 10, 2008

A significant “victory” for California employers, and their supervisors, has come about as the result of a recent Supreme Court decision.  Supervisors can now relax, to some extent, and stop worrying about whether they will face litigation, and possible personal liability, when an adverse personnel action against one of their subordinates is deemed to be retaliatory.   On March 3, 2008, the California Supreme Court decided the case of Jones v. The Lodge at Torrey Pines Partnership, 2008 DAR 3101, and ruled that supervisors cannot be held personally liable for retaliation under the California Fair Employment and Housing Act (FEHA).

Jones, a restaurant supervisor, sued his employer and his supervisor for retaliation under FEHA, claiming that he received a negative performance evaluation, was excluded from some meetings, and received four unfair written warnings after he complained that the supervisor and manager had made sexually inappropriate comments and jokes about women and gays.

California Government Code section 12940 defines discrimination, harassment and retaliation as unlawful employment practices.   FEHA prohibits discrimination by “any person acting as an agent of an employer,” and prohibits retaliation by “any employer, labor organization, employment agency, or person.”  Jones argued that the reference to “person” in the retaliation section meant there must be individual liability;  the Court disagreed.

The Court, in Jones, noted that FEHA had been amended in 2001 and the harassment subdivision had clear language which imposed personal liability on all employees, including supervisors, for their own harassing conduct.  However, the Court ruled, the section dealing with retaliation was less clear and, therefore, the Court needed to engage in statutory interpretation in order to resolve the ambiguity.

Prior Decisions

Prior to the amendment, the Supreme Court in Reno v. Baird, (1998) 18 Cal. 4th 640, ruled that nonemployer individuals were not personally liable for discrimination under the act.  TheReno Court stated that it would not impose personal liability without a much clearer statement of intent on the part of the legislature.

In 1999, in the case of Carrisales v. Department of Corrections, 21 Cal. 4th 1132, the Supreme Court held that nonsupervising employees were not personally liable for harassment under FEHA.   It again made reference to legislative intent and stated that if “the Legislature believes it is necessary or desirable to impose individual liability on co-workers it can do so.  But we believe that had it already intended to do so, it would have used much clearer language than that found in the harassment provision.”

The Court noted that the 2001 amendment to FEHA added the following language:  “An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee.”  However, the Court also noted, the legislature did not amend the statute to include personal liability based on discrimination or retaliation and, if it wanted to so do, it could have added those provisions, along with harassment.

The Jones court referred to the decision in Reno v. Baird and held that “Reno‘s rationale for not holding individuals personally liable for discrimination applies equally to retaliation.”  The Court noted that supervisors can avoid engaging in harassing behavior – that is within the individual supervisor’s control – but they might not be able to avoid personnel decisions which are often made by several persons.  The Court also noted that it would be bad public policy to subject supervisors to the threat of a lawsuit, and potential personal liability, every time the employer makes a personnel decision which could be viewed as retaliatory.

What Now?

If the legislature so wishes, it is free to amend FEHA and include individual liability on supervisors for retaliatory actions.  It is unknown at this time if such an effort will be undertaken.  This decision has, obviously, been well received by employers, and it can be assumed that the business community would oppose any attempts to amend FEHA to authorize expanding individual liability for its supervisors.

In any event, however, all employers should engage in training of their employees, especially supervisors and managers, to ensure that they all understand that retaliation, as well as harassment and discrimination, is illegal and will not be tolerated.  If, and when, such behavior is discovered, it is imperative that the employer take swift and appropriate action to ensure that the violator is disciplined and the adverse conduct ceases    immediately. Liability still exists as far as the employer is concerned – it is only the personal liability of the supervisor which the Jones case has removed..
[Originally published in the CPOA Network Newsletter in April 2008]

As always, if you wish to discuss this in greater detail, please feel free to contact me at (714) 446-1400 or email me at mjm@jones-mayer.com