Yesterday, the California Supreme Court held in a 4 to 3 decision that non-employer individuals cannot be held liable for retaliation claims brought under California’s Fair Employment and Housing Act (FEHA). Jones v. Torrey Pines, (2008) __ Cal.4th __ (S151022).
Plaintiff Scott Jones sued his employer and his supervisor for various causes of action, including sexual orientation harassment, discrimination and retaliation in violation of the FEHA. Following trial, the jury returned a verdict for Jones on his discrimination and retaliation claims. However, the trial court granted defendants’ motion for judgment notwithstanding the verdict and for a new trial on the basis that Jones had presented insufficient evidence that he suffered adverse employment action. As to the supervisor, the trial court also held that an individual cannot be held liable for retaliation.
The Court of Appeal reversed the trial court’s order, holding, among other things, that an individual supervisor can be held personally liable for retaliation under the FEHA. The California Supreme Court granted review and reversed.
In coming to its conclusion that individual employees cannot be held liable for retaliation claims brought under the FEHA, the Supreme Court compared the language of Govt. Code 12940(a) (concerning discrimination) and Govt. Code 12940(h) (concerning retaliation). In light of its prior holding in Reno v. Baird that non-employer individuals are not personally liable for unlawful discrimination under the FEHA, the Court analyzed the language differences between these two sections to determine whether those differences required a different rule as to retaliation claims. The Court found that the language differences were not “as great as initially appears” and determined that the legislative history of subdivision (h) supports the conclusion that there was no intent to impose personal liability on non-employer individuals. The Court also held that its previously stated reasons for not imposing liability on supervisors for discrimination claims brought under the FEHA apply equally to retaliation claims. Those reasons include: (1) supervisors can avoid harassment, but cannot avoid personnel decisions, (2) it is incongruous to exempt small employers from liability under this section but to hold individual non-employers liable, (3) sound public policy favors avoiding conflicts of interest and the chilling effect on management, (4) corporate employment decisions are often collective, and (5) it is bad policy to subject supervisors to the threat of a lawsuit every time they make a personnel decision.
For these reasons, the Court concluded that while an employer may be held liable for retaliation under the FEHA, non-employer individuals cannot be personally liable for their role in the retaliation. The Court explicitly disapproved Taylor v. City of Los Angeles Dept. of Water & Power, 144 Cal.App 4th 1216 and Walrath v. Sprinkel, 99 Cal. App 4th 1237 to the extent that they are inconsistent with this decision.
Click here to read the full opinion.
Keesal, Young & Logan Employment Group