The California Supreme Court in Jones v. The Lodge at Torrey Pines Partnership ruled that individuals may not be held personally liable for retaliation claims under the FEHA.

If you read the FEHA, section 12940(h) makes it unlawful for any “employer, labor organization, employment agency, or person” to retaliate against an employee. Read literally, this would appear to impose individual liability on a “person” who retaliates. California intermediate appellate courts have wrestled with the issue for years. However, in a decision split 4 to 3 among the justices, the California Supreme Court has finally decided the matter.

As outlet manager, Jones was responsible for the restaurant, bar, catering and banquet events, and the beverage cart service to golfers on the golf course. In October 2000, The Lodge hired a new beverage director, Jean Weiss. That is when the alleged problems began. Weiss and the kitchen manager developed a habit of telling jokes and making sexual remarks about women and employees known as “cart girls.” They also made fun of Jones’ sexual orientation. Jones complained about this treatment. Jones alleged that Weiss became hostile and threatened to fire Jones if he reported the matter to human resources. Jones did complaint to the HR manager and Weiss subsequently retaliated by writing him up for a laundry list of performance problems. Finally, Jones filed a DFEH complaint, resigned, and sued for sexual orientation discrimination against his employer and for retaliation against his employer and his supervisor, Weiss, individually.

At trial, the jury awarded Jones $1,395,000 in damages against the Lodge and $155,000 against Weiss. The trial court subsequently entered judgment in favor of Weiss, holding that an individual cannot be held liable for retaliation under FEHA. On appeal, the Court of Appeal reversed the trial court, finding that an individual can be held liable for retaliation. The California Supreme Court agreed with the trial court and held that individuals cannot be personally liable for FEHA retaliation. The Court has several reasons supporting its decision:

  • Ten years ago, the California Supreme Court held that individuals cannot be held liable for FEHA discrimination. Only the employer (usually a company) can be liable. The Court reasoned that if an individual cannot be liable for discrimination, she ought not to be held liable for retaliation either.
  • Although FEHA makes it illegal for a “person” to retaliate, the statute does not expressly make that person liable for his or her own unlawful conduct. The Court interpreted FEHA language to mean that the employer is liable for the conduct of the offending individual.
  • Individuals can be held liable for sexual harassment and other forms of unlawful harassment. But harassment is different; “Harassment consists of conduct outside the scope of necessary job performance, conduct engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.”
  • Suing individual supervisors does not do much to increase the victim’s ability to collect damages. On the other hand, the threat of a lawsuit could cause managers to make decisions based on what was least likely to lead to a claim of discrimination, rather than what as in the best interest of the company.