For California employees who can show harassing actions by a supervisor, one legal option is to sue the supervisor. Supervisors, and not just employers, can face liability to employees. Below, learn more about how and when a supervisor can be held liable.

Legal Overview

When most employees think about bringing employment-related claims, they think about suing their employer. However, individual supervisors can also be held liable for actions they take regarding employees they supervise. The California courts have held that supervisors can be held liable for harassing actions towards employees. However, supervisors cannot be held liable for discriminatory or retaliatory actions. Liability for discrimination and retaliation would fall directly on the employer.

California state law claims against supervisors most often fall under the Fair Employment and Housing Act, known as the FEHA. The FEHA protects employees by prohibiting various actions by supervisors, including harassment, and by employers.

Below, learn how the law defines a supervisor and the read about the differences between harassment, discrimination, and retaliation.

Definition of Supervisor

Different courts define the term “supervisor” in different ways. In California for lawsuits under the FEHA, a supervisor is defined as:

“any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”

To be a supervisor for purposes of the FEHA, a person does not need to be completely responsible or accountable for another employee’s work product or performance. Also, a supervisor is an agent of an employer, but supervisors cannot be held liable for all actions they take on behalf of an employer.

The United States Supreme Court gives another slightly more narrow definition, used in considering federal claims under the Civil Rights Act of 1964: A person is a supervisor if the employer gives him the power to “take tangible employment actions” against an employee. “Tangible employment actions” means a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

Harassment vs. Discrimination or Retaliation

The FEHA defines harassment, discrimination, and retaliation differently, and they are separate bases of liability. However, in interpreting the FEHA’s provisions, courts have found some overlap among the three. The distinction between harassment and discrimination/retaliation can be used to distinguish claims against supervisors from those against employers.

The way we commonly think about harassment and discrimination, it may not be obvious why a supervisor would be liable for one but not the other. One court put it this way: “harassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job.” In contrast, discrimination arises out of the “performance of necessary personnel management duties” that are inherently necessary to performance of the supervisor’s job. The same distinction is true for retaliation.

Harassment

The California Government Code defines harassment in the following way:

For an employer, labor organization, employment agency, training program, or any other person, to harass an employee, an applicant, an unpaid intern or volunteer, or a contractor;

Because of his or her race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

Further, loss of tangible job benefits is not necessary to establish harassment. In addition to supervisor liability, employers are strictly liable for harassment and can be sued along with the harasser. Employers must take all reasonable steps to prevent harassment from occurring.

Discrimination

In California, discrimination can be established when an employer:

• Refuses to hire or employ a person or to refuse to select a person for a training program leading to employment, or
  Bars or discharges a person from employment or from a training program leading to employment, or
  Discriminates against a person in compensation or in terms, conditions, or privileges of employment
• Because of his or her race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

Supervisors are not individually liable for discrimination.

Retaliation

According to the California Government Code, it is illegal for any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person:

• Because the person has opposed any practices forbidden under parts of the FEHA, or[/list]
• Because the person has filed a complaint, testified, or assisted in any proceeding under parts of the FEHA.

Supervisors are not individually liable for retaliation.

Aiding and Abetting Harassment

Supervisors can be held individually responsible not only for their own harassment of employees, but for aiding and abetting in another’s harassment. If the supervisor is aware of another employee’s harassing actions and fails to take action to stop the harassment, it may be construed as aiding and abetting under the law.

Do You Have to Be an Employee to Bring Suit?

Under the FEHA, not only employees but also independent contractors, job applicants, unpaid interns, and volunteers can bring suit for harassment against supervisors and employers.

Timeline for Reporting Harassment

Employees must report harassment by a supervisor as soon as possible to the employer, or alternatively, make use of the employer’s sexual harassment policy for reporting. If an employee delays or fails to report the harassment, in a subsequent lawsuit the supervisor and/or employer could have defenses as a result. In sexual harassment cases in California, the supervisor or employer can assert a defense under the “avoidable consequences” doctrine.

Avoidable Consequences Defense

The avoidable consequences defense is based on the argument that the damages a sexually harassed employee seeks could have been avoided if the employee had timely reported the harassment. If the employee had either complained to the employer or made use of the employer’s sexual harassment policy, the damages would either have been smaller or nonexistent. To prove the avoidable consequences defense, a supervisor or employer must show:

1. That the supervisor/employer took reasonable steps to prevent and correct workplace sexual harassment;
2. That the employee unreasonably failed to use the supervisor/employer’s harassment complaint procedures or the preventative and corrective measures that the supervisor/employer provided; and
3. That the reasonable use of the supervisor/employer’s procedures would have prevented some or all of the employee’s harm.

Are Punitive Damages Available?

In supervisor harassment cases, it can be difficult to support an award of punitive, or punishing, damages against an employer or a supervisor unless there is evidence either that (a) the supervisor helped dictate company policy or (b) that others in the company did. Courts focus on the employer’s “institutional responsibility” for the harassment, meaning that the employee must show that an officer, director, or managing agent of the employer "exercise substantial discretionary authority over decisions that ultimately determine corporate policy” regarding harassment, knew about the harassment, and ratified it.

Final Thoughts

Employees facing discriminatory, harassing, or retaliatory conduct by a supervisor have several possible claims to pursue. Under California law, they may be able to assert claims not only against the employer, but against the supervisor, and the claims and evidence in support may significantly overlap.

Cal. Gov’t Code § 12926(t).

“hile full accountability and responsibility are certainly indicia of supervisory power, they are not required elements of … the FEHA definition of supervisor. Indeed, many supervisors with responsibility to direct others using their independent judgment, and whose supervision of employees is not merely routine or clerical, would not meet these additional criteria though they would otherwise be within the ambit of the FEHA supervisor definition.” Chapman v. Enos (2004) 116 Cal.App.4th 920.

Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 66-72.

California courts interpreting the FEHA often use federal court decisions interpreting the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA) for guidance because of those acts’ similar objectives and language. Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th at p. 66. California employees seeking relief under the FEHA may have alternative causes of action under federal law.

Vance v. Ball State Univ. et al. (2012) 133 S. Ct. 2434, 2443.

Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th 55, 63; Reno v. Baird (1998) 18 Cal.4th 640, 645.

Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th at 63.

Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1164.

Cal. Govt. Code § 12940(j)(1). In contrast to California law, there is no supervisor liability for harassment under the federal Civil Rights Act of 1964 (Title VII).

Cal. Govt. Code § 12940(j)(1); State Dept. of Health Services v. Superior Court (McGinnis) (2003) 31 Cal.4th 1026. Employees, not just supervisors, may be liable for harassment personally. Cal. Govt. Code § 12940(j)(3). Non-employees may also be liable. Cal. Govt. Code § 12940(j)(1).

See Roby v. McKesson (2010) 47 Cal. 4th 686, 705-706 for an explanation of the difference between discrimination and harassment.

Reno v. Baird, supra, 18 Cal.4th 640.

Cal. Govt. Code § 12940(h).

Jones v. Lodge at Torrey Pines Partnership, supra, 42 Cal.4th 1158.

Cal. Govt. Code § 12940(g); Matthews v. Superior Court (1995) 34 Cal.App.4th 598, 605.

Cal. Govt. Code § 12940(j)(1). In contrast, under federal law non-employees cannot bring harassment suits against supervisors or employers in many situations. Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th Cir. 1980).

State Dept. of Health Services v. Superior Court (McGinnis), supra, 31 Cal.4th 1026, 1034.

California Civil Jury Instructions No. 2526.

Roby v. McKesson Corp., supra, 47 Cal.4th 686, 711, 714-715; Cal. Civ. Code § 3294(b).