In a March 3, 2008 ruling, a sharply divided California Supreme Court determined that individuals (e.g., supervisors and coworkers) cannot be held personally liable for retaliation in employment under the California Fair Employment and Housing Act (“FEHA”). Scott Jones v. The Lodge at Torrey Pines Partnership, et al.1 This important ruling reverses the contrary conclusions of lower state courts and federal courts in California, and clarifies that only employers, not individuals, can be held liable for retaliation under California law.

The Torrey Pines decision flows from the court’s 10-year-old decision in Reno v. Baird,2 which held that individuals cannot be held personally liable for discrimination under the FEHA, but can be held liable for harassment. The Supreme Court reached that holding in Reno by focusing on the legislature’s different statutory treatment of harassment and discrimination claims. The court further reasoned that harassment claims typically concern conduct that is unnecessary to a supervisor’s job performance and that is engaged in solely for personal gratification, whereas discrimination claims usually involve conduct that arises out of the supervisor’s performance of necessary personnel management duties.3

Despite its broad pronouncement in Reno, the California Supreme Court had not specifically addressed individual liability for retaliation claims under the FEHA until now. Several lower and federal courts had concluded that, because the statutory language proscribing that conduct specifically includes “persons,”4 as does the language prohibiting harassment, individuals could be held liable for retaliation.5 But the California Supreme Court has now utilized its reasoning in Reno to conclude that supervisors cannot be held liable for retaliation under the FEHA. The 21-page, 4–3 decision spawned two dissenting opinions, including a 28-page dissent by Justice Carlos Moreno, joined in by the other two dissenters.

With this clarification of California law, it is hoped that supervisors can now discharge their duties and manage their subordinates without fear of being sued as individuals for discrimination or retaliation, and with the desired impact of increasing the overall effectiveness of supervisory and collaborative decisionmaking.