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.

This case decides whether an individual be held personally liable for retaliation under the FEHA.

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.

This week I discuss Torrey Pines and judicial economy.

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Happy Hanukkah.

Due to the slow week last week, I don’t have enough worthwhile to say to create a Podcast. We’ll be back next week with a new Podcast.

Briefly noted:

• DHS retracts no-match letters in wake of court’s ruling.
• Torrey Pines will be argued before the Supreme Court on December 6th 4th (Thanks, Michael!).
• The U.S. Supreme Court will hear the case of Sprint/United Management Co. v. Mendelsohn on December 3rd (h/t California Labor & Employment Law Blog*)

* Good thing I renamed my blog a few years back, isn’t it? (;

Genomic discrimination, Torrey Pines, and more on Gattuso.

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