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Employment Law Alert – California Supreme Court’s Decision on Retaliation

April 2, 2008 |
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In March, the California Supreme Court, in a 4-3 split decision, held that non-employer individuals cannot be personally liable for retaliation under the Fair Employment and Housing Act (FEHA).  This case reversed a trend among the California appellate courts, which allowed individual managers and supervisors to be sued for their decisions to discipline, demote or terminate employees who made complaints of discrimination.  See Jones v. The Lodge at Torrey Pines Partnership(08 C.D.O.S. 2511).  Click here for the Court’s opinion.

The Court relied on its reasoning in Reno v. Baird (1998) 18 Cal.4th 640, which barred claims against supervisors for discrimination, to hold that supervisors cannot be held individually liable for retaliation.  In Jones v. The Lodge at Torrey Pines Partnership, the jury returned a verdict for the plaintiff on a claim of sexual orientation discrimination in violation of FEHA against the employer, and against the employer and supervisor for retaliation.  The jury awarded compensatory damages of almost $1.4 million against the employer and $155,000 against the supervisor.  The trial court entered judgment on the verdict, but then granted judgment, notwithstanding the verdict as to both defendants.  The California Court of Appeals for the Fourth District reinstated the original judgment on the verdict.

The California Supreme Court granted petition for review limited to the question of individual liability for retaliation, and reinstated the trial court judgment for the individual supervisor.  The majority opinion was by Justice Chin with two dissenting opinions by Justice Werdegar and Justice Moreno.

While this case is welcomed news for individual supervisors who have been sued for retaliation, employers should note that there is continuing risk of liability against the company for claims of retaliation.  While supervisors cannot be held personally liable if an employment action such as hiring, demotion, denial of a raise or termination is found to be the result of a discriminatory or retaliatory motive, the employer on whose behalf such action was taken, will still be liable.  Other cases in California have recently held that tangible employment actions such as demotions or denial of pay raises, which fall short of termination, can still result in claims of retaliation.  In addition, an individual supervisor or manager may still be sued and can be found personally liable for discriminatory harassment.

Attorneys in the Berliner Cohen Employment group will be pleased to provide further information regarding the matters discussed in this Alert:

Roberta S. Hayashi

Christine Long

Kara L. Arguello

Kate Wilson


Berliner Cohen’s experienced employment trial attorneys advise and represent employers of all sizes on a full range of legal issues affecting the workplace, including harassment and discrimination, unfair competition and trade secrets, wrongful discharge, wage and hour issues, and labor disputes.  Berliner Cohen is one of the largest law firms in San Jose serving the business and regulatory needs of private business and public agencies.  For 40 years, the Firm has developed the special expertise required by a diverse client base consisting of some of Silicon Valley’s largest corporations, new ventures, leading real estate developers, cutting-edge software manufacturers, healthcare providers, mortgage banking companies, municipalities and public agencies.  Berliner Cohen also meets the growing demands of the San Joaquin Valley with its expanding office in Merced.

©2008 Berliner Cohen.  This Alert is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship and no attorney-client relationship is created through your use of the Berliner Site or your receipt of the materials.