California court holds individual supervisor personally liable for retaliation against employee
February, 2007
A California court of appeal recently confirmed that an individual supervisor can be held personally liable for retaliation under the Fair Employment and Housing Act ("FEHA"). The court also held that consequences other than termination or demotion – e.g., placing the employee on probation or reducing his or her responsibilities – constituted "adverse employment action," one of the prerequisites for bringing a discrimination or retaliation case. This new case, Jones v. Lodge at Torrey Pines, is yet another indication of growing interest in retaliation claims by plaintiff's attorneys and the courts (see also California Supreme Court expands liability for retaliation ).
What Jones means for California Employers and supervisors
To reduce their risk of liability and that of their managerial employees, employers should update their employment policies and training practices to include specific anti-retaliation policies and procedures. All employers and managers should treat employee complaints seriously, even if the complaint does not expressly concern allegedly unlawful conduct. Complaints should be investigated promptly and appropriate remedial steps should be taken, and those steps should be documented.
Just as important, employers must follow up after a complaint has been resolved to ensure that the complaining employee does not suffer any adverse consequences from his or her complaint. Supervisors and HR personnel should be trained and reminded that even actions such as a significant reduction in the employee's responsibilities or placing him or her on probation – not just termination or demotion - could be considered by the courts as "adverse consequences" in a retaliation claim.
Facts of Jones
Plaintiff Scott Jones worked as a restaurant manager for The Lodge at Torrey Pines. Jones claimed his supervisor, defendant Jean Weiss, made daily graphic "gay-bashing" and sexual jokes and derogatory remarks. Jones formally complained to Weiss and to HR. Weiss then began excluding Jones from meetings and continued making offensive and threatening remarks. Upon returning to work from a harassment-related disability leave, Jones was given the option of a transfer and demotion to another location. Jones made it clear that he wanted to return to his job and would not accept a demotion. The Lodge placed him on administrative leave while deciding what to do with him. When the administrative leave expired, Jones was told he could return to work but that he was on 30-days probation and that his sudden disability leave had "burn[ed] a bridge" with management. When Jones told the HR manager he had complained to a representative of the California Department of Fair Employment and Housing ("DFEH"), the HR manager accused him of "blackmailing" the hotel. Jones filed a retaliation complaint with DFEH and was subsequently excluded from an important meeting. Over a two-week period, Jones received four employee warning notices from Weiss. Jones then resigned.
The Jones case Analysis and Holding
Jones sued for sexual orientation discrimination against The Lodge and retaliation against The Lodge and Weiss under FEHA. At trial, the jury awarded Jones $1,395,000 against The Lodge and $155,000 against Weiss, but the trial court granted defendants' motions for judgment notwithstanding the verdict and a new trial.
Jones appealed. On the appeal, the defendants argued that if individual supervisors are not liable for employment discrimination under FEHA, they also are not liable on retaliation claims. The appellate court rejected that argument, holding that the statutory language and context makes clear that an individual supervisor can be personally liable for retaliation.
The appellate court also held that placing Jones on "unwarranted probation" and "significantly diminish[ing] [his] material responsibilities" met the test for "adverse employment actions," one of the prerequisites for bringing a discrimination or retaliation case. The appellate court thus reinstated the judgment in favor of Jones against both the employer and individual supervisor.
Please contact your Bullivant attorney for additional details or questions.