Jones v. Lodge at Torrey Pines Partnership

Facts

Scott Jones, an employee of The Lodge at Torrey Pines resort, sued his employer and his supervisor, Jean Weiss, for sexual-orientation harassment, discrimination, and retaliation under the FEHA. (42 Cal.4th at pp. 1160–1161.) Jones alleged Weiss subjected him to sexual-orientation harassment and retaliated against him after he opposed it. (Id. at p. 1161.) The trial court summarily adjudicated the harassment claim, finding the conduct not severe or pervasive enough to be actionable, but the discrimination claim (against The Lodge) and the retaliation claim (against both The Lodge and Weiss individually) went to a jury. (Ibid.) The jury returned a verdict for Jones, awarding $1,395,000 against The Lodge and $155,000 against Weiss, but found Weiss had not acted with malice or oppression. (Ibid.)

Procedural history

The trial court granted judgment notwithstanding the verdict as to Weiss, holding that an individual cannot be personally liable for retaliation under the FEHA. (42 Cal.4th at p. 1161.) The Court of Appeal reversed, concluding Weiss could be individually liable. (Ibid.) The Supreme Court granted review and reversed the Court of Appeal, reinstating the judgment that the supervisor was not personally liable. (Id. at pp. 1160–1161, 1173–1174.)

Issue

Does the FEHA make individual supervisors and other nonemployer individuals personally liable for retaliation under Government Code section 12940, subdivision (h), or — as with discrimination under Reno — is only the employer liable? (42 Cal.4th at pp. 1160, 1162.)

Holding

Reasoning

1. The word “person” does not compel individual liability. Jones argued that because section 12940, subdivision (h), makes it unlawful “for any employer . . . or person” to retaliate, all persons who retaliate are personally liable. The Court rejected the inference: “[i]n context, the Legislature might have used the word ‘person’ for reasons unrelated to a desire to make individuals personally liable for retaliation.” (42 Cal.4th at pp. 1162–1167.) Where statutory language “permits more than one reasonable interpretation,” the Court looks to context and purpose rather than seizing on a single word. (Id. at pp. 1162–1163.)

2. Retaliation is analyzed like discrimination. The Court reasoned that retaliation under the FEHA is, in substance, a species of discrimination — adverse action taken because of protected activity — and so should be governed by the same liability rule as discrimination. (42 Cal.4th at pp. 1164–1167.) “[A]ll of the reasons for not imposing individual liability for discrimination apply equally to retaliation.” (Id. at p. 1167.)

3. The Reno policy reasons carry over. The Court catalogued the considerations from Reno: supervisors “can avoid harassment but cannot avoid personnel decisions”; it is “incongruous” to exempt small employers from FEHA liability while holding nonemployer individuals personally 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.” (42 Cal.4th at pp. 1167–1169.) Each reason, the Court held, applies with equal force to retaliation, which likewise arises out of supervisory personnel decisions. (Ibid.)

4. Harassment liability is different — and preserved. The Court reaffirmed that the FEHA does impose individual liability for harassment (Gov. Code, § 12940, subd. (j)(3)), because harassment is conduct outside the necessary scope of personnel management and is avoidable. (42 Cal.4th at pp. 1167–1168.) Retaliation, by contrast, typically operates through the same delegable personnel actions as discrimination, so the no-individual-liability rule applies. (Ibid.) The Court disapproved Taylor, which had reached the opposite conclusion. (Id. at p. 1173.)

5. The dissents. Justice Moreno, joined by Justices Kennard and Werdegar, dissented, arguing that the plain text of subdivision (h) — barring retaliation by “any . . . person” — makes individuals liable, and that the majority subordinated clear statutory language to policy. (42 Cal.4th at pp. 1174–1190 (dis. opn. of Moreno, J.).) Justice Werdegar wrote separately in dissent as well. (Id. at pp. 1174 et seq. (dis. opn. of Werdegar, J.).) The 4–3 split reflects the genuine textual difficulty the majority acknowledged. (Id. at pp. 1162–1163.)

Significance

Jones completes the FEHA individual-liability map: no personal liability for discrimination (Reno) or retaliation (Jones), but personal liability for harassment (§ 12940, subd. (j)(3)) and for aiding and abetting (§ 12940, subd. (i)). It is the controlling authority dismissing supervisors and managers from FEHA retaliation counts, and it disapproved the contrary Taylor line. The decision also illustrates the Court’s method of reading statutory text in light of purpose where a single word is ambiguous. It works in tandem with Reno, Roby v. McKesson Corp. (2009) 47 Cal.4th 686 (harassment/discrimination evidentiary overlap), and the retaliation framework of Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028. See the Review’s coverage of the FEHA-structure line.

Key quotes

“We conclude 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.” (Jones, supra, 42 Cal.4th at p. 1160.)

“[I]n context, the Legislature might have used the word ‘person’ [in section 12940, subdivision (h)] for reasons unrelated to a desire to make individuals personally liable for retaliation.” (Id. at pp. 1162–1163.)

Read the full opinion (California Supreme Court — full text) →

Practice pointer

Open questions

Whether and how individuals remain exposed through aiding-and-abetting liability for retaliation — given that the underlying retaliation cannot be charged against them directly — continues to be litigated. The forceful 4–3 split also leaves the textual debate over the word “person” a live subject of academic and litigation interest, particularly as the Legislature periodically amends the FEHA.