Metropolitan News-Enterprise


Tuesday, March 4, 2008


Page 1


Court: Individuals Cannot Be Held Liable for Workplace Retaliation


By STEVEN M. ELLIS, Staff Writer


Non-employer individuals cannot be held personally liable for workplace retaliation under the California Fair Employment and Housing Act, the California Supreme Court ruled yesterday.

Reversing the decision of Div. One of the Fourth District Court of Appeal, the court held 4-3 that an employee who charged that he was the subject of retaliation after he complained about workplace harassment could hold his employer liable under Government Code Sec. 12940, but could not hold the supervisor who allegedly engaged in the retaliation liable because the act does not impose personal liability on non-employers.

Scott Jones, a former employee of The Lodge at Torrey Pines Partnership, filed suit against the Lodge and his former supervisor, Jean Weiss, alleging various causes of action under the FEHA including sexual orientation harassment, discrimination, and retaliation.

‘Gay-Bashing’ Jokes

Jones, who had worked in supervisory positions at a restaurant operated by the Lodge in La Jolla, alleged that Weiss and others often engaged in graphic, “gay-bashing” jokes at Jones’ expense. He complained that his efforts to address the situation within the company had resulted in further verbal abuse, negative performance evaluations, and exclusion from management meetings, which ultimately forced him to resign from the company for health reasons.

San Diego Superior Court Judge Richard E.L. Strauss granted summary judgment on a number of the counts, and only two causes of action went to trial: a sexual orientation discrimination claim against the Lodge under Sec. 12940(a), and a retaliation claim against both the Lodge and Weiss under Sec. 12940(h).

The former section prohibits that it is an “unlawful employment practice” to discriminate against a person “in compensation or in terms, conditions, or privileges of employment” based on sexual orientation. The latter prohibits “any employer, labor organization, employment agency, or person” to retaliate against a person who has opposed any practices forbidden under the statute or who has “filed a complaint, testified, or assisted in any proceeding” under the statute.

Insufficient Evidence

The jury returned a verdict in Jones’ favor on both counts, but Strauss granted the defendants’ motions for judgment notwithstanding the verdict, concluding that Jones had presented insufficient evidence to conclude that he had suffered an adverse employment action as to his former employer and that Weiss, as an individual, could not be held liable for retaliation.

All of the parties appealed, and the Court of Appeal reversed the trial court and reinstated the original judgment on the verdict.

On appeal to the Supreme Court, Weiss argued that the trial court had been correct in determining that an individual could not be held liable for retaliation, and the majority, in an opinion by Justice Ming W. Chin, agreed.

Reasoning that the court’s previous ruling in Reno v. Baird (1998) 18 Cal.4th 640—which held that only employers, and not non-employer individuals, can be held liable for discrimination under the statute—applied equally to retaliation claims, Chin rejected Jones’ contention that Sec. 12940(h)’s reference to “any person” extended liability beyond employers.

He wrote:

“All of [the reasons set forth in the Reno opinion] for not imposing individual liability for discrimination—supervisors can avoid harassment but cannot avoid personnel decisions, it is incongruous to exempt small employers but to hold individual nonemployers liable, sound policy favors avoiding conflicts of interest and the chilling of effective management, corporate employment decisions are often collective, and it is bad policy to subject supervisors to the threat of a lawsuit every time they make a personnel decision—apply equally to retaliation. Indeed, some may apply even more forcefully to retaliation claims…

“The Legislature has given the same exemption to small employers against claims of retaliation that it gave small employers against claims of discrimination…. No reason appears why it would want to make nonemployer individuals personally liable for retaliation but not for discrimination.

Chief Justice Ronald M. George, and Justices Marvin R. Baxter and Carol A. Corrigan joined Chin in his opinion.

However, Justice Carlos R. Moreno wrote in a sharp dissent that “the Legislature meant what it said…when it added the word ‘person’ to the FEHA’s retaliation provision.”

Moreno said that the majority’s opinion would give incentive to supervisors who harass—and face the risk of personal liability—to also retaliate against employees who oppose the conduct.

“[U]under the majority’s view,” he wrote, “the supervisor risks no additional liability for retaliating and might avoid liability for harassment as well, if he or she successfully ‘discourages’ the employee from pursuing a claim.”

Saying that he could not “conclude the Legislature intended such a perverse and irrational result,” Moreno urged the Legislature to step in and clarify the circumstances under which individuals may be held personally liable for retaliation.

Moreno was joined in his dissent by Justices Joyce L. Kennard and Kathryn Mickle Werdegar.

The case is Jones v. The Lodge at Torrey Pines Partnership, 08 S.O.S. 1355.


Copyright 2008, Metropolitan News Company