With my thanks to an observer at the oral argument who wishes to remain anonymous:

Overall, I recall the defense focused on the implication for having supervisors personally liable (i.e., if supervisors are just following order from the top).  The plaintiff’s counsel responded by comparing this scenario to a Nazi soldier who kills following an order from the top (i.e., that soldier should be personally liable for the killing).

There was also a lot of discussion/questioning from the justices about how there is no personal liability for the act of discrimination  - - yet the plaintiff’s position is to find personal liability for retaliation that resulted from the discrimination (i.e., if the manager discriminates against an employee, manager is not personally liable.  if the manager subsequently fires the employee for reporting the discriminatory conduct, we then can find the manager personally liable for the retaliation).  Either Justice Chin or Justice Corrigan asked the plaintiff’s counsel: what mental state does a plaintiff have to show in order to find the individual manager personally liable.  I think the response was “animus intent.”

So, the Nuremberg Defense argument? Hmmm…. Personally, I find the constant comparison of everything to the Holocaust… trivializing of it.

This is not about denying a remedy to a plaintiff–it’s about leverage, so I’m not sure I see the “just taking orders” issue as all that relevant, but maybe I’m just turned off by the context.

Tags: feha, torrey pines

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