Preventing Workplace Harassment, Discrimination, and Retaliation

2. I NDIVIDUAL P UBLIC E MPLOYEES Employees are subject to personal liability for harassment under the FEHA, but not under Title VII. 239 Specifically, under the FEHA, employees may be held personally liable for harassment if they participate in unlawful harassment or if they substantially assist or encourage continued harassment. A supervisor, however, is not personally liable for inaction or acts constituting personnel management decisions. 240

Further, individual public employees cannot be held liable for retaliation or for discrimination. 241

B. H ARASSMENT BY C LIENTS OR N ON -E MPLOYEES Even if the harasser is not an agent or supervisor of the public entity employer, the employer may still be liable if its agents or its supervisors knew or should have known of the harassment of any employee or applicant but failed to take immediate and appropriate corrective action. 242 C. C ONSTRUCTIVE D ISCHARGE In the common law action for constructive discharge, an employer is liable if its officers, directors, managing agents, or supervisory employees create or knowingly permit intolerable working conditions that force a reasonable employee to resign. 243 The U.S. Supreme Court determined that a plaintiff claiming sexual harassment resulting in “constructive discharge . . . must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response.” 244 The Court further held that employers may raise the avoidable consequences doctrine (i.e., that the employer took reasonable care to prevent or correct the harassing behavior and that employee did not take advantage of these measures) to reduce damages only if the employee did not resign following an action by an employer that was so severe it changed the employee’s employment status or work situation. Examples of such severe behavior include a humiliating demotion, extreme cut in pay, or transfer to a position with unbearable working conditions. D. O BLIGATION TO D EFEND AND I NDEMNIFY I NDIVIDUAL P UBLIC E MPLOYEES Public entity employers are required to defend and indemnify any public employee in a civil lawsuit if the act or omission giving rise to the injury occurred in the course and scope of the individual’s employment with the public entity. 245 The following principles govern whether a public entity employer may be liable for illegal harassment by an employee:  An employer may be liable for an employee’s misconduct if the conduct resulted from or arose out of the employee’s pursuit of the employer’s interests;

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 60