Supervisors Not Liable for Military Service Discrimination

December 15, 2011  |  From HRCalifornia Extra

Federal and state laws prohibit discrimination on the basis of military status. Recently, a California court addressed for the first time whether supervisors could be held personally liable for military service discrimination under state law.

California Military and Veterans Code sec. 394 prohibits employers from discriminating against members of the armed forces. The law provides that no member of the military forces can be “prejudiced or injured” in employment because of membership or service in the military forces. The law also states that no one can be discharged from employment because of service in the military. Haligowski v. Superior Court, 200 Cal.App.4th 983 (2011).

Deployed Employee Alleged Discrimination

Lieutenant Mario Pantuso was employed by a scaffolding company. While employed, he was called to active duty with the Navy and deployed for six months to Iraq. Pantuso claimed that he received negative performance evaluations after he told his supervisors he would be deployed. Pantuso also claimed that when he returned from his deployment, he was told by his immediate supervisor and the regional manager that his employment was terminated.

Pantuso sued his employer, his individual supervisor and the regional manager for discrimination and sought damages against the company and the individuals.

The individuals sought to have the claims against them dismissed asserting that there was no basis for individual liability. The trial court refused to dismiss the claims against the individuals, but the court of appeal disagreed.

Case Allowed to Proceed Against Employer but Not Individuals

The court of appeal ruled that only the employer can be liable under the state Military and Veterans Code and that the statute does not establish individual liability for supervisors. The court noted that this statute is drafted similarly to the Fair Employment and Housing Act (FEHA).

It is clearly established under the FEHA that individual supervisors cannot be held liable for discrimination, only the employer. The court reasoned that because case rulings refuse to hold supervisors personally liable for FEHA discrimination claims, the same result should apply to similar language in the Military and Veterans Code.

The court also noted that if the Legislature had intended to hold a manager individually liable, the Legislature would have specified its intent in the law. For instance, the Legislature specifically spelled out that supervisors can be personally liable for harassment claims. The court did not address the merits of Pantuso’s lawsuit. The only issue before the court was the issue of individual liability.

Federal Law Provides a Different Result

Employers should note that if Pantuso had brought his case under federal law, a different result would have occurred. USERRA prohibits discrimination against:

  • Past members of the uniformed services
  • Present members of the uniformed services
  • Persons who apply to be a member of any of the branches of the uniformed services or to perform services in the uniformed service
  • Persons with obligations (now or in the future) to serve in the uniformed services

The federal Department of Labor issued specific regulations establishing that individual supervisors may be held personally liable for discrimination in violation of USERRA (20 C.F.R. § 1002.5 (d)(1)(i)). In contrast to California law, the language of USERRA indicates that Congress intended to hold supervisors personally responsible for normal management conduct that violates USERRA.

Best Practices

Employees who have served in the military or have ongoing service obligations in the Reserves are entitled to various protections. Employers should:

  • Review anti-discrimination and anti-harassment policies. Military service and veteran status should be listed as protected.
  • Train supervisors on state and federal provisions protecting military service.
  • Understand USERRA’s re-employment rights. USERRA protects civilian job rights and benefits for veterans and members of Reserve components.
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