CA High Court Again Rules Individuals not Liable for Workplace Retaliation

March 17, 2008 ( - In the same way as it has already ruled that nonemployer individuals in a workplace cannot be held liable for discrimination claims under the California Fair Employment and Housing Act (FEHA), the California Supreme Court has now extended that view to workplace retaliation claims.

The state’s high court ruled in Scott Jones vs. The Lodge at Torrey Pines Partnership that nonemployer individuals also cannot be held liable for employee claims of retaliation under FEHA.

According to the March 3, 2008, issue of California eAuthority from law firm Ogletree Deakins, the court used the same standard in a previous case in which it found individuals cannot be liable in retaliation claims based on five supporting factors:
  • Individual supervisors can avoid harassment, but cannot avoid personnel decisions (i.e., unlike harassing conduct, discriminatory behavior may be based on adhering to personnel decisions), and thus, individual supervisors/managers should not be held liable for discrimination or retaliation. 
  • Given that the FEHA currently exempts employers with fewer than five employees from discrimination lawsuits, it would prove incongruent to exempt small employers from liability but hold individuals financially responsible. 
  • Permitting personal liability for retaliation could create a conflict of interest when a supervisor must choose between following management policies to make decisions that might be best for the company and subjecting the individual to potential liability (thereby resulting in a chilling of effective management). 
  • Corporate decisions generally are collective as opposed to individual. 
  • It is bad public policy to subject individual supervisors to a threat of a lawsuit every time they have to make personnel decisions. 

Jones asked his supervisor at The Lodge at Torrey Pines to refrain from making derogatory remarks about women and homosexuals, the publication said. Afterwards, he received warning notices based on false charges and was excluded from meetings. His supervisor also continued to use offensive language.

Jones sued under the FEHA for sexual orientation discrimination by his employer and retaliation by both his employer and his supervisor. A trial judge found that there was insufficient evidence of an adverse employment action for purposes of establishing sexual orientation discrimination or retaliation, because none of the alleged retaliatory acts had a tangible detrimental effect on Jones’ employment.

The California Court of Appeal reversed the trial court’s ruling on the adverse employment action by Jones’ employer, and ruled that the individual supervisor could be held liable for the retaliation.

The California Supreme Court reversed the appellate court’s decision regarding the individual supervisor’s liability. The Supreme Court ruling is available here .