The Supreme Court of California recently provided supervisors with one less thing to worry about by ruling that only employers, and not individual supervisory employees, may be held liable for retaliation. (Scott Jones v. The Lodge at Torrey Pines (177 P.3d 232.)
This recent ruling is in essence an extension of the 1998, Reno Court decision that held – although an employer may be held liable for discrimination under the California Fair Employment and Housing Act (FEHA), non-employer individuals are not personally liable for that discrimination. (Reno v. Baird (1998) 18 Cal.4th 640.) However, the Reno Court did not make a ruling regarding retaliation claims against non-employer individuals and such claims continued to be utilized by plaintiffs. Consequently, while employers have argued that the principles applied in the Reno case (finding that individuals are not personally liable for discrimination) are equally applicable to retaliation claims against supervisors, until this recent ruling, the decision was left to each individual trial judge.
The ultimate effect for employers is that plaintiffs may no longer assert claims of retaliation against individual supervisors in lawsuits. Disgruntled former employees have traditionally asserted this type of claim against their former supervisors as a way of exacting revenge and increasing their bargaining power during settlement negotiations. Plaintiffs’ ability to pursue this strategy with retaliation claims is now gone. However, individual supervisors remain vulnerable to commonly-used claims such as: (1) statutory harassment claims; and (2) intentional infliction of emotional distress claims.
Finally, employers should anticipate continued attempts by plaintiffs to link claims of harassment and retaliation flowing from alleged harassment by the supervisor. The recent Jones decision did not address the issue of whether an individual who is personally liable for harassment might also be personally liable for retaliating against someone who opposes or reports that same harassment.
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