©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 181 6.11.4 Personal liability for retaliation For many years, California courts deviated from analogous federal law to impose personal liability on individual supervisors who retaliated against employees for opposing unlawful harassment or discrimination.286 A California supervisor considering an employment decision on behalf of the employer that could be characterized as retaliatory thus had to consider the prospect of personal liability. It was highly doubtful that even the California Legislature ever intended to create such a conflict of interest for the individual supervisor. Magnifying the aberrant nature of this doctrine of personal liability for retaliatory employment decisions was the judicial recognition that supervisors are not personally liable for employment decisions that turn out to be discriminatory or against public policy.287 A hypothetical absurd result of the California doctrine was that a single wrongful dismissal could result in no personal liability for the individual decision-maker with respect to claims for sex and race discrimination and a claim for wrongful discharge, but personal liability for the individual decisionmaker with respect to a claim for retaliation. California courts nonetheless insisted on this absurd result by relying on a literal reading of a statutory provision.288 Finally, in 2008, the California Supreme Court ended the nonsense (albeit only by a close vote of 4-3) by ruling that nonemployer individuals cannot be held personally liable for retaliation, just as they cannot be held personally liable for discriminatory actions.289 6.11.5 Broader class of plaintiffs Ordinarily only employees and job applicants can bring retaliation claims, against their employer or prospective employer. Thus it was that a trial court granted summary judgment against a physician partner who claimed that her medical group removed her as a regional director because she had opposed sexual harassment of female employees. The Court of Appeal, however, reversed, concluding that it would further the purpose of FEHA—to eliminate employment discrimination—to allow a retaliation claim by the doctor, a non-employee, against the physician group, an employer, where the alleged retaliation was in response to her reporting employment discrimination.290 6.11.6 Lower causation standard Under Title VII, a retaliation plaintiff must prove that the “protected activity was a but-for cause of the alleged adverse action by the employer.” In other words, the plaintiff must prove that the adverse action would not have occurred but for the employer’s retaliatory motive.291 In California it’s different. FEHA plaintiffs need only show that an unlawful retaliatory intent was a “substantial motivating factor” in the employer’s adverse action.292 6.12 Special Rules for No-nepotism Policies Employers in America generally may forbid the hiring of anyone who is a relative of any existing employee. This policy does not discriminate against anyone on a protected basis. In California, it’s different. California prohibits discrimination based on marital status and interprets that prohibition in a peculiar way. The DFEH maintains that an employer cannot base an employment decision on whether an individual’s spouse is employed by the employer unless (1) there are “business reasons of supervision, safety, security or morale” such that an employer may “refuse to place one spouse under the direct supervision of the other spouse,” or (2) “the work involves potential conflicts of interest or other hazards greater for married couples than for other persons,” such that “business reasons of supervision, security or morale” warrant a refusal to have both spouses in “the same department, division or facility.”293
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