California Courts Do It Again!”Negligent Failure To Prevent Retaliation” Supervisors Personally Liable!!
Well, it never stops! The California Court of Appeals handed plaintiffs lawyers another favorable holding to use against employers in retaliation lawsuits. The Fair Employment & Housing Act (FEHA) already contains an express provision stating that employers must “take all reasonable steps necessary to prevent discrimination and haraasment.” In drafting this particular section the legislators elected to omit any reference to retaliation claims so, as a result, the court of appeals decided to extend the reach of this statutory provision to include retaliation as its own form of discrimination.
In the Court’s opinion, the Court specifically held that retaliation is different from discrimination when it comes to imposing personal liability on supervisors which means that “a supervisor may be held personally liable for retailiation under a FEHA (California claim for discrimination) claim.” In short, retaliation may be treated as either the same or different from discrimination, depending on which one provides the most “liberal construction” for plaintiffs in suing the employer.
With this decison in mind, you have to understand that once an employee lodges a potentially protected complaint, ANY subsequent job changes in his job assignments or status may be cited as a form of alleged “retaliation.” My best advice is to take all reasonable steps to advise managers and supervisors that they have to leave out emotional knee jerk reactions when an employee complains about any form of harassment whether it is based upon a portected class (race, religion, age, disability, etc.) or sexual harassment. Remember, the employee can loose on a discrimination allegation and still win on a retaliation claim. The Court will look at the perception of the individual, the facts that appear to support that some adverse action was taken, and not consider your intent (just the act that took place).
As always you must understand that documentation plays a key role. If you were consistent with your documentation before and after the employee complained and that documentation is consistent, it goes a long way toward your defense.