©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 179 6.11.2 Broad definition of adverse employment action The California Supreme Court acknowledges that an adverse employment action “must materially affect the terms, conditions, or privileges of employment to be actionable” under the FEHA,286 but broadly defines adverse employment action for purposes or retaliation to include “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” The Supreme Court has thus permitted a retaliation plaintiff to establish an adverse employment action by citing a wide variety of intermediate personnel management decisions, such as (1) unwarranted negative performance evaluations, (2) a refusal to allow the plaintiff to respond to allegedly unwarranted criticism, (3) unwarranted criticism voiced by a manager in the presence of the plaintiff’s associates, (4) a “humiliating” public reprobation by a manager, and (5) a manager’s solicitation of negative feedback from the plaintiff’s staff.287 By this approach, the “totality of the circumstances” could show an adverse employment action against the plaintiff even if she never suffered a formal job detriment. 6.11.3 Broad application of the continuing violation doctrine Under federal law, the continuing violation doctrine, properly understood, applies only to harassment cases and does not apply to discrete personnel management decisions.288 In California it’s different. The California Supreme Court, criticizing federal law, has rejected an employer’s contention that certain retaliatory acts preceding the limitations period were time-barred. The Supreme Court concluded that limiting employees to evidence of discrete acts within the limitations period would undermine the goals of encouraging informal resolution of disputes and avoiding prematurely filed lawsuits. Under the Supreme Court’s broad view of the continuing violation doctrine, an employer can be liable for acts that preceded the limitations period if they are sufficiently linked to unlawful acts that occurred within that period. And under this approach, the statute of limitations begins to run only when the continuing course of conduct comes to an end (such as by the employer’s cessation or by the employee’s resignation), or when the employee is on notice that further efforts to end the unlawful conduct would be in vain.289 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.290 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.291 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.292 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.293
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