©2025 Seyfarth Shaw LLP www.seyfarth.com 2025 Cal-Peculiarities | 187 coworker’s work; and (6) including negative comments in the plaintiff’s performance review. In reversing summary judgment to the employer, the Court held that the conduct created a triable issue of an adverse employment action “under the totality of the circumstances.”291 But the Court’s ruling in Bailey should not open Pandora’s box. It emphasized that its decision was very factspecific and driven by the alleged retaliator’s role as the Human Resources manager: “A reasonable trier of fact could find that [the Human Resource manager]’s course of conduct, in light of her position, effectively sought to withdraw [the plaintiff’s] means of reporting and addressing workplace discrimination and harassment. This is not a ‘[m]inor or relatively trivial’ action that does no more than anger or upset the affected employee. Rather, the withdrawal of an employee’s right to avail themselves of the HR process typically available to other employees materially affects the ‘terms, conditions, or privileges’ of their employment.” Thus, the Court reasoned, “[s]uch treatment is reasonably likely to impair the affected employee’s job performance insofar as it leaves them unprotected from the very harms FEHA was designed to eliminate.”292 So, Bailey’s extreme and unusual facts should make it more of a cautionary tale rather than a case du jour. 6.11.3 Broad application of the continuing violation doctrine Under federal law, the continuing violation doctrine applies only to harassment cases and does not apply to discrete personnel management decisions.293 In California it’s different. Criticizing federal law, the California Supreme Court has rejected an employer’s contention that certain retaliatory acts preceding the limitations period were time-barred. The 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 California 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.294 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.295 Under this extreme approach, the prospect of personal liability faced any supervisor considering an employment decision that could be characterized as retaliatory. It was highly doubtful that the California Legislature ever intended to create such a conflict of interest for the individual supervisor. The aberrant nature of this California doctrine was magnified by judicial rulings that supervisors are not personally liable for employment decisions that turn out to be discriminatory or against public policy.296 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 decision-maker 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.297 Fortunately, common sense prevailed. 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.298
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