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California Court ? No Individual Liability for Retaliation

By Stephanie Robinson

Overruling a number of decisions by intermediate appellate courts, a divided California Supreme Court has rejected the notion that an employment discrimination plaintiff may file claims against individual defendants for retaliation. The decision in Jones v. The Lodge at Torrey Pines Partnership, 2008 WL 443670 (Cal. 2008), will foreclose the pursuit of claims against individual defendants for retaliation under California?s employment discrimination laws. The case arose when Jones sued his employer and Jean Weiss, his supervisor, for various causes of action, including sexual-orientation harassment, sexual-orientation discrimination, and retaliation in violation of the California Fair Employment and Housing Act (?FEHA?). The trial court granted summary adjudication to the defendants on the harassment claim, finding that Jones failed to present admissible evidence of harassment by Weiss. The discrimination claim against the employer proceeded to trial, as did the discrimination and retaliation claims against Weiss, and the jury returned a verdict in favor of Jones. The trial court granted the defendants? motions for judgment notwithstanding the verdict and for a new trial, concluding, inter alia, that an individual cannot be liable for retaliation. The Court of Appeal reversed, finding that an individual can be held liable for retaliation under FEHA. This holding was consistent with rulings made by other divisions of the Court of Appeal. The Supreme Court, however, concluded that individuals cannot be held liable for retaliation. The court noted that as a general proposition, individuals cannot be held liable under FEHA for discrimination. Specifically, the court indicated that while employers may be liable for unlawful discrimination, ?individuals working for the employer, including supervisors, are not personally liable for that discrimination.? But unlike the statutes prohibiting discrimination, the retaliation statute makes it unlawful for an employer, labor organization, employment agency ?or person? to retaliate against an individual who opposes unlawful practices or files a complaint about such practices. Jones argued that because the retaliation statute includes the word ?person,? the statute?s plain meaning indicates that the legislature intended that an individual could be personally liable for retaliation. The Supreme Court disagreed. The court began by noting that the statutory language is not plain, in that it does not clearly establish that an individual is to be held personally liable for retaliation. Instead, the court concluded that the same principles it applied to discrimination cases were controlling in retaliation actions. According to the court, discrimination claims ?arise out of the performance of necessary personnel management duties,? unlike harassment claims, which are based on individual actions. The decision to harass an employee falls outside an individual?s normal job duties, making individual liability appropriate, while personnel decisions and actions have to be made, even if they turn to be discriminatory. The court concluded that this reasoning, as well as other reasons for not imposing individual liability for discrimination, ?apply equally to retaliation.? Three justices dissented, pointing to what they described as the clear language in the statute providing for individual liability. Full Opinion Text: http://www.courtinfo.ca.gov/opinions/documents/S151022.PDF

Full post as published by Business and Technology Law on March 06, 2008 (boomark / email).