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Individual Employees Are Not Liable For Retaliation Under
FEHA
On March 3, 2008, the California Supreme Court held that non-employer individuals are not personally liable for retaliation under the California Fair Employment and Housing Act, Cal. Gov. Code, § 12900 et seq. (“FEHA”). Jones v. Lodge at Torrey Pines (Case No. S151022).
The FEHA makes it unlawful for an employer to harass or
otherwise discriminate against any employee based on the employee’s membership
in a protected class. The FEHA also prohibits an employer from retaliating against an
employee who has exercised his or her rights under the FEHA. In 1998, the California Supreme Court held,
in Reno v. Baird (1998) 18 Cal.4th 640, that an individual cannot be held personally
liable for discrimination under the FEHA.
Over the past
several years, many lower state courts and the Ninth Circuit Court of Appeals
distinguished numerous cases from
The plaintiff in Jones alleged that he suffered sexual
orientation discrimination, and that his supervisor subjected him to sexual
orientation harassment, sexually harassed female employees, and retaliated
against him when he complained about the harassment. Although the claims for harassment did not
make it to trial, a jury ultimately found in favor of Jones on his claim for
sexual orientation discrimination against The Lodge at Torrey Pines (The
Lodge). The jury also found in Jones’s
favor against both The Lodge and Jones’ supervisor on his claim for
retaliation. The jury awarded
compensatory damages of $1,395,000 against The Lodge and $155,000 against
Jones’s supervisor. The case was
appealed and the court of appeal upheld the jury verdict on a number of
grounds. On further appeal, the
California Supreme Court accepted review of the case only as to the limited
question of whether an individual could be held personally liable for
retaliation under the FEHA.
The Court’s decision
relies heavily on its prior decision in
Specifically, the Court searched the legislative history of the FEHA, and found no indication that the Legislature intended to impose individual liability for retaliation. The Court also concluded that the reasons for not imposing individual liability for discrimination are likewise compelling with regard to claims for retaliation: (1) individual liability would constrain supervisors’ ability to make personnel decisions because they would be concerned about their personal exposure to a lawsuit; (2) FEHA exempts small employers from liability and it therefore would be incongruous to impose such liability on individuals; and (3) management decisions are often made by a group of people and it would be impossible to establish each individual’s proportional liability.
Practical
Considerations
The law is now settled that the FEHA imposes liability on individual employees for harassment (e.g., sexual harassment), but not for employment discrimination or retaliation. Keep in mind, however, that employers remain liable for all three of these unlawful employment practices. Consequently, the Jones decision may reduce the ability of plaintiffs to bring employment lawsuits against individual employees, but should not have much impact on the overall volume of FEHA lawsuits.