Supremes Decide Jones v. Lodge at Torrey Pines

The California Supreme Court has decided in Jones v. Torrey Pines (2008) ___ Cal.4th ___ (S151022) that non-employer individuals cannot be held liable for retaliation.  The applicable part of the FEHA, Government Code section 12940(h) makes it unlawful for "any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because that person has filed a complaint, testified, or assisted in any proceeding" under FEHA.  Two California courts of appeal and the Ninth Circuit have all held that this language is unambiguous and means what it says:  an individual may not retaliate against a person who exercises FEHA rights, and can be held liable if he or she does.  Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216;  Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237;  Winarto v. Toshiba America Electronics Components (9th Cir. 2001) 274 F.3d 1276.

Not so, said the Supreme Court:  the use of the term "person" is ambiguous, and the Court therefore goes through an extensive amount of "interpretation" to render the word surplusage to support its holding. In an  impassioned and very well-reasoned dissent, Justice Moreno (joined by Justices Werdegar and Kennard) assails the Court for implementing its own views of public policy and incentivizing supervisors who harass to also retaliate against employees who oppose the harassment in an effort to dissuade their victims from reporting the conduct. 

The majority argues that it is only addressing retaliation for complaining of discrimination, not harassment (fn. 4) and that it is not expressing an opinion as to whether retaliation for complaining of harassment makes a supervisor liable.  So this window remains slightly open.  But as Justice Moreno shows in his dissent (the majority doesn't discuss the facts of the case at all), the complaints which formed the basis for the retaliation clearly related to harassment.

All in all, not a good day for plaintiffs in FEHA retaliation cases.

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