March 2, 2008 Supervisors, and Other Individuals, Cannot be Held Liable for FEHA Retaliation


This morning, the Supreme Court of California issued a decision in Jones v. The Lodge at Torrey Pines Partnership (click here to view decision), holding that individuals (usually supervisors) cannot be held personally liable for retaliation under the California Fair Employment and Housing Act ("FEHA").  The Court followed its reasoning in Reno v. Baird, an earlier case in which the high court found that only employers, and not individuals, could be held liable for discrimination under the FEHA.


Scott Jones, a homosexual male, was an outlet manager of The Lodge at Torrey Pines.  Jones complained about the conduct of two managers who engaged in inappropriate and offensive behavior toward him and female employees.  Jones complained directly to the managers and to the Human Resources Director.  In response to his complaint, Jones claimed that he was yelled at, reprimanded and excluded from meetings. 

Jones brought suit against The Lodge and one of the supervisors for various claims, including for retaliation under the FEHA.  The case proceeded to trial, and a jury determined that The Lodge and the supervisor engaged in retaliation against Jones, and it awarded $155,000 in damages against the supervisor.  The issue of the supervisor's individual liability was taken up by the California Supreme Court.  The Court held that an individual may not be held personally liable for retaliation under the FEHA.  In a footnote, the Court declined to rule out the possibility of a retaliation claim as part of a harassment claim against a supervisor.

In reaching its conclusion, the Court contrasted the clear language in the FEHA that provides for personal liability for an employee who engages in harassment with the language in the other subparts of the FEHA that refer to "a person" acting as an agent for an employer.  The Court determined that retaliation, like discrimination, arises out of the conduct of "necessary personnel management duties."  The Court noted the importance of allowing supervisors the freedom to make decisions lest they be faced with "an employee [who] gains a reputation as a complainer, [and] a supervisor [being] particularly afraid to impose discipline on that employee or make other lawful personnel decisions."

What This Means

While it has been well-settled law that an individual may not be liable for discrimination, this case confirms the same for retaliation under the FEHA.  It thereby allows supervisors to carry out the duties of their enterprises, without fear of being brought into court by every employee who complains and then is subjected to lawful discipline or termination.  This ruling does not affect the existing rule that individuals may be held personally liable for harassment under the FEHA.

This E-Update was authored by Fred Plevin and Melissa Listug Klick.  For more information, please contact Mr. Plevin, Ms. Listug Klick or any Paul Plevin attorney at (619) 237-5200.