Court Lifts Retaliation Liability From Supervisors

Managers and supervisors can thank the California Supreme Court for a decision that dispels the fear that they will be hauled in front of a jury on charges of retaliation as the result of a personnel action.

The March decision in Jones v. The Lodge at Torrey Pines Partnership establishes that, under California law, individual supervisors and managers cannot be charged with retaliation. While employers still can be liable for retaliation, the ruling also clears the way for multistate employers to seek friendlier venues in such cases.

"I don't think this decision will depress the number of [retaliation] suits. There's still liability out there, and plaintiffs' counsel will want to pursue that," says James E. Hart, a shareholder in Littler Mendelson. "But I buy into the majority's reasoning that when these claims are brought, it's going to be the company bearing the brunt of any payout."

Scott Jones, a food-service manager at The Lodge, charged that his supervisor and a second manager created a hostile work environment and discriminated against him by making sex-related comments and jokes. When he complained, Jones said the supervisor threatened to fire him, gave him a negative performance review, excluded him from meetings and issued him work-related warnings.

Jones sued his San Diego employer and the two managers claiming sexual harassment, retaliation and emotional distress. After the harassment claim was dismissed, Jones' sexual discrimination and retaliation claims against The Lodge and his retaliation claim against his supervisor were tried before a jury, which returned a verdict in favor of Jones. But the trial court ruled the supervisor could not be held liable for retaliation. The Court of Appeals unanimously reversed that decision. That put the case in the lap of the state Supreme Court.


Getting Personal
In Reno v. Baird (1998), the California high court said that although an employer may be held liable for discrimination under the California Fair Employment and Housing Act (FEHA), nonemployer individuals are not personally liable for that discrimination. But that decision did not address liability for retaliation. In Jones the court had to decide whether the FEHA makes individuals personally liable for retaliation.

In a 4-3 ruling, it concluded that "the same rule applies to actions for retaliation that applies to actions for discrimination: The employer, but not nonemployer individuals, may be held liable." The court made this decision despite the language of the statute, which says it's unlawful for "any employer, labor organization, employment agency, or person" to retaliate. But the high court did not agree with the plaintiff that the statute's use of the word "person" meant supervisors should be held liable for
retaliation claims.

From the court majority's point of view, supervisors shouldn't be looking over their shoulders wondering if they will be sued if they take action against an employee. "Because a retaliation claim can only be based on an adverse employment action, it really should be the company that is held liable. That was the majority's main point," Hart says.

Jones' attorney, Scott Toothacre, filed for a review of the decision March 18, alleging the justices unfairly imposed their beliefs over the will of the legislature. "The issue of harassment was not addressed," Toothacre says. "This was the court's version of tort reform."


Diversity Dilemma
The state Supreme Court's ruling did, however, assist multistate employers with California-based operations that seek to move similar cases to friendlier federal courts under the "diversity" legal
concept. This gives federal courts the power to decide cases between citizens of different states.

The whole idea for removal is that out-of-state employers may be at a disadvantage in the plaintiff's jurisdiction, Hart says. A multistate employer with no California resident named as a defendant could request a case be moved to federal court.

"A lot of times plaintiffs' attorneys will name supervisors as the defendant because that supervisor also lives in California, and that destroys diversity because you have a California plaintiff and a California defendant," says Jennifer Olson, a lawyer at Ford & Harrison. "With this decision, now plaintiffs can't bring that [retaliation] claim against the California supervisor. They can only bring it against the company."

That would put the case in the presumably more conservative federal court. "I think it's a commonly held belief by defense counsel that federal court is a better forum [than the California courts]," Hart says. "That may or may not hold true, depending on which federal judge you have and the circumstances."

More clear-cut is the victory for supervisors and managers who get entangled in allegations of discrimination and retaliation. "Now individual supervisors making personnel decisions will not be chilled by the fear of being personally sued," Hart says.

And that may make it easier for employers to convince people to take supervisory positions in California.

"[The decision] enables employers to ensure they have the best and the brightest in their supervisory and management positions, people who will not be concerned with holding back on taking legitimate, non-retaliatory personnel actions," says Melanie Poturica, a Liebert Cassidy Whitmore partner
who submitted an amicus brief on behalf of The Lodge for the League of California Cities.

Staff Writer-PublishThis Test

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