California’s Military and Veterans Code contains protections against discrimination for members of the armed forces.  Recently, the issue of whether an individual can be held personally liable for discrimination was addressed.

In Haligowski v. Superior Court of Los Angeles County, the Court of Appeal held that employees who are members of the armed forces may only hold employers, but not individual supervisors or other employees, personally liable for employment discrimination against armed forces members in violation of California Military and Veterans Code section 394, even though the statute expressly states that “no person” can discriminate against a member of the armed forces.

In Haligowski, Lieutenant Mario Pantuso was called to active duty with the Navy while working at Safway Services.  He served a six month deployment in Iraq, and sought to return to work to his prior position upon his return.  Instead of being returned to work, his supervisor and the regional manager told Lt. Pantuso that he was terminated.  Pantuso sued Safway, his supervisor and the regional manager for discrimination and retaliation under the California Military and Veterans Code.

Section 394 prohibits any “person any “person, employer, or officer or agent of any company” from discriminating against military members because of that membership. The Court reviewed the body of case law holding that individuals cannot be liable for discrimination or retaliation under the California Fair Employment and Housing Act (FEHA). Following that reasoning, the Court found that discrimination claims against individuals that arise out of necessary personnel management duties, and decisions that are an inherent and an unavoidable part of the supervisory function, cannot be the basis of a discrimination claim against an individual.  The Court found that a supervisory employee cannot refrain from the type of conduct which could later give rise to a discrimination claim.  In contrast, however, harassment is conduct that is not necessary for the performance of a supervisory job.  Thus, individual employees can be held liable for harassment on the basis of membership in the armed forces.

It is noteworthy that this case does not change the ability of an employee to sue an individual for employment discrimination under federal law.  Under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), an employee can sue an individual employee for employment discrimination based on their membership in the military.

This decision does not change the ability of an employee to sue an individual for employment discrimination under federal law.  Under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), an employee can sue an individual employee for employment discrimination based on their membership in the military.

The Haligowski decision establishes new precedent under Section 394 in that it prohibits individual supervisor liability for employment discrimination against members of the military.  Regardless, public employers should train its supervisors and employees that it is unlawful to discriminate on the basis of an employee’s military service or membership.  This is especially important since, under federal law, plaintiffs can seek to hold individual employees liable for employment discrimination based on their military membership.  Plus, employees can be held liable for harassment on the basis of military membership under state law.  Finally, in this context, the public agency itself can be held liable for discrimination, retaliation, and harassment under state and federal law, thereby making it important to train all employees on how to prevent liability for such claims.