California employees who have been harassed by their supervisors or bosses for illegal reasons (for example religion, gender, age) have the right under California law to sue not only their employer but also the person who harassed them. The Fair Employment and Housing Act (FEHA) states that “an employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” Thus, plaintiffs suing for harassment often name the supervisors and coworkers responsible for the harassment as defendants, along with their employer.

There Is No Individual Liability for Employment Discrimination Under California Law

On the other hand, a California employee seeking to sue for employment discrimination must sue the employer and not individuals working for the employer. Although the employer may be liable for unlawful discrimination under the Fair Employment and Housing Act (FEHA), individuals working for the employer, including supervisors, are not personally liable under FEHA for that discrimination.

Why Is There Such A Distinction, And Does It Hurt My Case?

An employee who is thinking about suing his or her employer for employment discrimination ( and harassment may be wondering why he or she can sue a supervisor for harassment but not discrimination.

The rationale for the distinction is more academic and less practical: harassment consists of a type of conduct not necessary for the 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 the conduct of a type necessary for the management of the employer’s business or the performance of the supervisory employee’s job.

Discrimination claims, by contrast, arise out of the performance of necessary personnel management duties. While harassment is not a type of conduct necessary for personnel management, making decisions is a type of conduct essential to personnel management. An individual supervisory employee cannot refrain from engaging in the type of conduct which could later give rise to a discrimination claim. Making personnel decisions is an inherent and unavoidable part of the supervisory function.

In the vast and overwhelming majority of employment discrimination cases, this distinction is of little relevance to the eventual outcome of the case. Often, the facts of a given employment discrimination case would support both claims of harassment and discrimination. Therefore, limiting the types of claims that an employee can pursue against an individual will have, in most cases, little practical impact.

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