4-3, goes parallel with Reno v. Baird. I never really understood (a) what good making employees personally liable for harassment or retaliation would do, and (b) why retaliation should be treated any differently than harassment. Non-employers simply aren’t in a duty-creating relationship vis-a-vis employment practices. There are other tort frameworks out there, besides those in the Fair Employment and Housing Act, that can provide remedies to those ills.
I try not to opine that strongly. At my new gig, I’ll be representing both sides. Does that give me credibility from both sides, or from neither? I suspect the latter. (=
Anyway, my view is that this is a stare decisis case based on Reno.
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congrats on the new employment. I hope it won’t interfere with your important work here.
the SupCt majority:
1. ignors and fails to address all the contrary opinions holding individuals liable under FEHA for their retaliation (and can’t cite any in support of its opinion)
2. ignors the language of FEHA that says any person may be liable for retaliation (which it doesn’t say about discrimination ala Reno)
3. ignors the Legislative reaction to its prior weird interpretation of FEHA [i.e., finding no individual liability for harassment], which was rejected by a Legislative amendment that declared it was existing of prior law [individuals always were liable for harassment per the Legislature], just as they’re likely to say about retaliation
4. doesn’t provide reasoned support for its conclusion, but substitutes rhetorical questions and statements of disbelief (and big chunks of another opinion about a different topic)
okay, you don’t get the policy for personal liability for retaliation (or any employment practice? e.g., some courts have found the FMLA provides personal liability); neither did the majority; however, that’s a policy decision, and the statute says any person may be liable (i.e., the Legislature made the “other” policy decision and decided it was a good idea to impose personal liability).
following the majority opinion, counsel for the harassing manager should advise the manager to retaliate to convert the harassment into a constructive discharge (or to scare the victim into not suing at all), to make the company responsible for the primary damages (discrimination and retaliation), and to take the heat off the manager for the harassment by making it a minor event in the subsequent employer-liable-only victimization of the victim.