When an employee sues both the company and a manager under California’s Fair Employment and Housing Act, only one of the claims against the manager is usually viable. An employee is personally liable for harassment the employee commits. Individual supervisors and coworkers generally aren’t personally liable for discrimination or retaliation, which run against the employer. Sorting the claims that way early shapes the company’s defense, the manager’s defense, and the forum.
When is an employee personally liable for harassment?
When the employee committed the harassment. Government Code section 12940(j)(3) says 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.”
The California Supreme Court called that “clear language imposing personal liability on all employees for their own harassing actions” in Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158. The rule isn’t limited to supervisors. A coworker with no authority over the plaintiff is just as exposed for the coworker’s own conduct.
The limit is in the phrase “perpetrated by the employee.” A manager who received a complaint and handled it badly didn’t perpetrate the harassment. That failure may matter to the company’s liability, but by the statute’s terms it doesn’t make the manager personally liable for someone else’s harassment.
Can a manager be personally liable for discrimination or retaliation?
Generally not. In Jones, the court described its earlier holding that “although the employer may be liable for unlawful discrimination, individuals working for the employer, including supervisors, are not personally liable for that discrimination.” It then extended the same rule to retaliation, holding that “the employer is liable for retaliation under section 12940, subdivision (h), but nonemployer individuals are not personally liable for their role in that retaliation.”
The court left one question open. Because no actionable harassment was found in that case, it expressed “no opinion on whether an individual who is personally liable for harassment might also be personally liable for retaliating against someone who opposes or reports that same harassment.” A complaint that pleads both harassment and retaliation against the same manager may test that gap.
The duty to prevent harassment belongs to the organization too. Section 12940(k) makes it unlawful “For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” A failure-to-prevent count pleaded against a manager individually is a candidate for a demurrer.
| Claim under FEHA | Can the individual be personally liable? | Source |
|---|---|---|
| Harassment, subd. (j) | Yes, for the employee’s own harassment | Gov. Code § 12940(j)(3) |
| Discrimination, subd. (a) | Generally no | Jones, describing Reno v. Baird |
| Retaliation, subd. (h) | Generally no for nonemployer individuals | Jones (open question on retaliation tied to the individual’s own harassment) |
| Failure to prevent, subd. (k) | The duty runs to the employer and listed entities | Gov. Code § 12940(k) |
Why do plaintiffs name the manager at all?
Often for reasons that have little to do with collecting from the manager. A California manager named as a defendant can keep a case in state court. Under 28 U.S.C. § 1441(b)(2), a case removable only on diversity grounds “may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” A company based outside California that would otherwise remove a FEHA case to federal court can lose that option when the plaintiff names a local manager on a viable harassment claim.
Naming the manager also adds pressure. The manager now has a personal stake, a personal lawyer, and a reason to want the case settled. That’s why the viability of the claim against the manager is worth testing early. A claim that’s really about discrimination or retaliation, relabeled as harassment, may not survive a challenge. The statute’s words “properly joined” also matter: a defendant removing a case can argue that a manager named only on a claim that can’t succeed shouldn’t block removal.
Does the company have to defend the manager?
It may have to cover the manager’s losses. Labor Code section 2802(a) requires an employer to “indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” Whether a harassment claim arises from the discharge of the manager’s duties depends on the facts alleged and proved, and that question can be contested.
The practical answer usually starts with the insurance. An employment practices liability (EPLI) policy may cover individual managers as insured persons, depending on how the policy defines an insured. The company should tender the claim for both defendants and read the policy’s consent and counsel terms, and how it splits costs between insureds, before choosing lawyers.
Joint representation needs care. The company’s strongest defense may be that the manager violated its policies and the company responded promptly. That defense can hurt the manager. When the defendants’ interests may diverge, separate counsel, or a written conflict waiver under the California Rules of Professional Conduct, protects both of them.
What should the company do when it and a manager are both sued?
- Preserve the records under a litigation hold, including the personnel files of the plaintiff and the manager, any complaints and investigation files, emails and texts between them, and the harassment policy and training records in effect.
- Calendar each defendant’s response deadline, since service dates can differ, and check the arbitration agreement and the EPLI policy’s notice and consent requirements for both.
- Identify the witnesses, and keep the manager from contacting the plaintiff or taking any step that could look like retaliation.
- Pull the documents the harassment claim depends on, such as the complaint the plaintiff made, the company’s response, and the training the manager received.
- Talk to a lawyer before deciding whether one firm can represent both defendants, responding to the complaint, or discussing settlement.
The firm’s page on FEHA defense for employers and their managers describes its approach to these cases. For the harassment theory that ties a supervisor’s demands to job benefits, see the post on quid pro quo sexual harassment in California.
Individual harassment liability questions from California employers
Does the harasser have to be a supervisor?
No. Section 12940(j)(3) applies to “An employee of an entity subject to this subdivision,” without limiting it to supervisors. A coworker can be personally liable for the coworker’s own harassment. The difference is on the company’s side: the employer’s own liability for a coworker’s harassment depends on whether it knew or should have known and failed to take immediate and appropriate corrective action.
Can the company and the manager share one lawyer?
Sometimes, with informed written consent. Shared counsel saves money and keeps the defense consistent, and it works when both defendants say the harassment didn’t happen. It gets harder when the company wants to argue the manager acted against policy, or when the manager blames others. Those conflicts should be identified at the start, since switching counsel midway is expensive and disruptive.
If a court dismisses the harassment claim, is the manager out of the case?
Usually, if harassment was the only viable claim against the manager. Discrimination and retaliation claims generally don’t reach individuals under Jones. That’s why the pleading stage matters for the manager. A demurrer or motion directed at the claims against the manager can end the manager’s part of the case well before trial.
Does the company’s investigation have to wait for the lawsuit?
No. The company’s duty to take reasonable steps to prevent harassment doesn’t pause when a complaint is filed. A prompt, documented investigation by someone outside the manager’s chain of command is often the company’s best evidence. Its findings can also affect the manager’s defense, which is one more reason to settle the representation question early.
If your company and one of its managers have been sued for harassment
If your company and one of its managers have been named in a harassment lawsuit, the early sorting of claims and the representation decision usually shape the rest of the case. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving harassment allegations against individual managers. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are Government Code section 12940, Labor Code section 2802, and 28 U.S.C. § 1441. The decision is Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.