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Retaliation--Supervisors Personally Liable

Retaliation--Supervisors Personally Liable

Employers that retaliate against employees for complaining about discrimination will be liable and supervisors engaging in the same will be personally liable as well. A California Court of Appeal found that employees who engage in protected activities, such as filing discrimination complaints, serving as a witness in a discrimination complaint and openly opposing discriminatory practices, are protected from retaliation in the workplace. The court confirmed that if employees suffer adverse action or if the supervisor's actions would dissuade employees from making or supporting a discrimination claim, both the employer and supervisor can be held liable.

Not only did the employee in this case suffer a demotion and decreased opportunities for advancement, the employer and supervisor's behavior deter other employees from complaining or assisting in enforcement of discrimination and retaliation protections. The types of actions taken by the supervisor combined with the timing of each action demonstrates the required "causal link" between employee-protected activity and the employer and supervisor's inappropriate actions, sufficient to support liability against both. Taylor v. City of Los Angeles Dept. of Water and Power (November 20, 2006) 2006 Cal. App. LEXIS 1812.

Significance of this Law

Taylor v. City of LADWP, above, clarifies situations in which supervisors will be liable. If an employee alleges only discrimination based on his membership in a "protected category" [e.g., age, sex, race, religion, national origin, ancestry, disability or medical leave use], liability does not extend to individual supervisors. Of course, the employer/company is liable for discrimination.

Retaliation is considered similar to harassment. Individual supervisors are liable for harassment if the harassment is linked to a discriminatory motive. [e.g., sex or race]. The same is true for retaliation. If the retaliation is motivated by discrimination, a statute in California imposes liability on the individual supervisor.

Naming individual supervisors in a lawsuit can have multiple tactical advantages for the employee. It may prevent the case from going into federal court, where many plaintiffs attorneys believe they have less chance of success. It may compel the employer or its insurance carrier to state a potential or actual conflict of interest between the company and the supervisor, because the company's liability is the result of the supervisor's misconduct. If so, the insurance company for the employer may have to pay for a separate attorney to represent the supervisor, or it may be put the company in the uncomfortable position of disassociating from its supervisor all together, in effect admitting his retaliation. As a result, a settlement is more likely.

Employers who are informed by an employee that he or she is being punished by a supervisor for complaining about discrimination have a legal duty to take immediate steps to protect the employee and to investigate the merits of the complaint. California statutes require that employers take all reasonable measures to make the work environment free of discrimination and harassment. An employer who delays responding to an employee's internal complaint is exposed to liability for failure to investigate and correct the problem.

Employee Rights Attorney Frank Pray

5160 Campus Drive

Newport Beach CA 92660

949.251.1006

877.job.atty


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