I Am Not a Lawyer

Technology has failed me on the SCOCAL oral arguments, so I’m turning to the second most interesting thing happening in the California Supreme Court this week that has to do with gay people: Jones v. The Lodge At Torrey Pines. In this case, plaintiff Scott Jones was a manager at a fancy hotel’s restaurant in San Diego. His supervisor took various adverse actions against him for being gay, for complaining about the adverse actions, and possibly for helping female employees complain about being sexually harassed, and management didn’t stop it. (I’m writing about the facts from my memory of the Court of Appeal opinion; please forgive any incorrect or hazy details.) After resigning, Jones sued The Lodge at Torrey Pines and the supervisor himself for retaliation under California’s Fair Employment and Housing Act. That’s sort of the state version of federal employer rights laws — it protects workers from various types of employment discrimination, harassment and retaliation.

The question arose: Can an individual manager be held liable for retaliation? The Court of Appeal said yes, but the Supreme Court said no. They’re relying on a decision called Reno v. Baird (1998) 18 Cal.4th 640. Reno said nonemployer individuals can’t be held liable for discrimination, and SCOCAL decided that the same logic applies to retaliation. The justices said individuals are still liable for harassment, though, because the behaviors that constitute harassment can’t really be part of your job duties. Whereas the sorts of actions that could constitute discrimination can also be a necessary part of making management decisions. Justices Werdegar, Moreno and Kennard dissent strongly, however, citing precedent of their own to suggest that the majority decision ignores caselaw and legislative intent. In fact, Werdegar wrote an extra dissent saying it undermines FEHA as a whole. Moreno’s dissent says the decision could actually incentivize retaliation, because it might weaken an otherwise sound harassment case. The dissenters outright called on the Legislature to pass a law specifying that you can sue individuals for retaliation. That public debate would be interesting to watch.

Takes from actual lawyers at (so far) What’s New In Employment Law?, Ross Runkel’s Employment Law Blog and Storm’s California Employment Law (and congratulations on the new gig in a beautiful area).