No individual liability for retaliation
March, 2008
The California Supreme Court confirmed that supervisors are not individually liable for retaliation under California's employment discrimination laws. While the Court's decision in Jones v. The Lodge at Torrey Pines Partnership does not absolve employers from liability for retaliation, which can be substantial, individual supervisors' pockets are apparently off-limits to California plaintiffs.
Background. Scott Jones sued his employer, The Lodge at Torrey Pines Partnership, and his supervisor, Jean Weiss. Jones claimed he had suffered sexual orientation harassment and discrimination, and also had been retaliated against complaining about the harassment, all in violation of California's Fair Employment and Housing Act ("FEHA"). Two of Jones's causes of action went to a jury trial: the claim for sexual orientation discrimination against his employer only, and the claim for retaliation against both his employer and supervisor. The jury returned a verdict for Jones on both causes of action. It awarded compensatory damages of $1,395,000 against the employer and $155,000 against the supervisor.
The trial court rejected the verdict and entered judgment for defendants. The trial court concluded that an individual supervisor cannot be liable for retaliation. The Court of Appeal reversed and reinstated the verdict against both defendants.
California Supreme Court says only employers liable for retaliation. FEHA states that no "employer, labor organization, employment agency, or person" may fire or otherwise discriminate against any employee who "has filed a complaint, testified, or assisted in any proceeding under" FEHA. Jones argued that the statute's prohibition of retaliation by a "person" meant that individual supervisors were individually liable.
However, the California Supreme Court disagreed. The Court contrasted the retaliation language with other provisions in the FEHA that clearly impose individual liability for harassment. The retaliation statute, on the other hand, was subject to more than one reasonable interpretation. In interpreting the statute, the Court determined that the legislature intended to impose retaliation liability against employers only, and not individual supervisory employees.
Three of the seven justices dissented, indicating that it was a close case for the Supreme Court – and perhaps that the decision may not stand the test of time.
What this means for your business. The primary effect of the Jones case may be to ease the minds of your supervisory employees, if only somewhat. Such employees will not face individual suit for the often difficult (and second guessed) decisions about hiring and firing that make up a supervisor's job.
Jones clearly underscores the significant dangers to employers of retaliatory conduct and the need for employers to provide appropriate training for supervisors in order to minimize such risks to the employer. Such supervisory training, which your Bullivant employment lawyer can provide for your business, is not just good risk management. Remember, it is legally required every two years for employers with more than 50 employees.
Contact your Bullivant employment lawyer with any questions about this case or to set up a training session.