MORENO, J., Dissenting. Plaintiff Scott Jones alleged that his supervisor, defendant Jean Weiss, subjected him to sexual orientation harassment and also sexually harassed female employees. Plaintiff further alleged that Weiss retaliated against him when he complained about the harassment to Weiss, to Weiss’s supervisor, and, ultimately, to the Department of Fair Employment and Housing (DFEH). It is well settled that Weiss can be held individually liable for harassment under Government Code section 12940, subdivision (j)(3), part of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).1 This case asks us to decide whether, under section 12940, subdivision (h), which forbids retaliation by “any employer, labor organization, employment agency, or person” (italics added), Weiss may be held individually liable for his retaliation as well.
I conclude, as has every other state and federal published opinion to have considered the issue, that the language of section 12940, subdivision (h) unambiguously imposes individual liability on any “person” who retaliates. I presume that the Legislature meant what it said (People v. Snook (1997) 16 [1176]Cal.4th 1210, 1215 [69 Cal.Rptr.2d 615, 947 P.2d 808]) when it added the word “person” to the FEHA’s retaliation provision (Stats. 1987, ch. 605, § 1, p. 1942). Just as subdivision (h) unquestionably imposes liability on an employer, labor organization, and employment agency that retaliates, subdivision (h) similarly imposes liability on a “person” who retaliates. Such an interpretation is consistent with established canons of statutory construction—when a statute’s language is clear, our inquiry ends. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103 [56 Cal.Rptr.3d 880, 155 P.3d 284].) While the majority may harbor doubts about the wisdom of imposing personal liability on individuals who retaliate (maj. opn., ante, at pp. 1164-1168), such policy concerns are properly directed at, and resolved by, the Legislature, not this court.
In rejecting the most commonsense reading of the statute, the majority ultimately concludes that the word “person” in section 12940, subdivision (h), “incorporates” or refers back to other provisions of the statute that are aimed at actions a “person” takes. (Maj. opn., ante, at pp. 1163-1164; see § 12940, subds. (c), (j).) However, as explained below, the only reasonable conclusion that follows is that a supervisor who retaliates against an employee who opposes that same supervisor’s harassment, as occurred in this case, may be held personally liable under subdivision (h). Because the Legislature has undisputedly provided for individual liability for harassment (§ 12940, subd. Q(3)), it logically follows that, at a minimum, there must also be individual liability for any connected retaliation by the harasser. To hold otherwise would be incongruous indeed. The Legislature could not have intended to expose a supervisor to individual liability for harassing an employee on the one hand, while, on the other hand, shielding that supervisor from liability for retaliating against the employee for opposing that very same harassment. Yet that is precisely the effect of the majority’s holding.
In my view, neither the statutory language, nor the legislative history, nor logic can bear the weight of the majority’s reasoning. Its holding incentivizes supervisors who harass (and thus face the risk of personal liability [see § 12940, subd. (j)(3)]) to also retaliate against employees who oppose the harassment in an effort to dissuade their victims from reporting the conduct— under the majority’s view, the supervisor risks no additional liability for retaliating and might avoid liability for harassment as well, if he or she successfully “discourages” the employee from pursuing a claim. I cannot conclude the Legislature intended such a perverse and irrational result. I therefore dissent and urge the Legislature to clarify the circumstances under which individuals may be held personally liable for retaliation.
[1177]I. Background
The majority omits any mention of the events leading up to the filing of this action. (Maj. opn., ante, at pp. 1160-1161.) Because I believe that the facts of this case provide an important context for understanding the legal issues and policy considerations, I begin by setting forth the relevant facts and procedural history.2
A. Facts
Defendant The Lodge at Torrey Pines Partnership (The Lodge) was formed in 1995 to develop, own, and operate The Lodge at Torrey Pines (LTP), a hotel and restaurant adjacent to the Torrey Pines Golf Course in La Jolla, California.3 The Lodge operated a restaurant at the LTP called The Grill. In 1995, plaintiff began working in a supervisory position at The Grill. In 1997 he was promoted to manager of the restaurant and then, in 2000, he was again promoted to the position of outlet manager, making him responsible for the restaurant, bar, catering and banquet events, and the beverage cart service to golfers on the golf course. That same year, The Lodge began major reconstruction of the LTP with the goal of creating a five-diamond hotel. The Grill remained open during the reconstruction even though the hotel was being demolished around it. In October 2000, The Lodge hired Weiss as the LTP’s food and beverage director. At that time, plaintiff was in charge of The Grill and Ken Mullen was the chef in charge of the kitchen.
Plaintiff testified at trial that Weiss and kitchen manager Jerry Steen developed “a special bond of joke telling” that involved daily jokes and sexual comments about female employees and plaintiff. Weiss used the words “fucking,” “tits,” “bitch,” “cocksucker,” and “faggot” in jokes that plaintiff found highly offensive and degrading. In connection with a banquet function, Weiss said people like plaintiff are better at decorating and plaintiff “should be good at this kind of stuff.” When plaintiff was not present, Steen and Weiss said plaintiff had “to go home to fuck [his] bitch” or “[his] bitch needs [him] at home.” Weiss and Steen aimed graphic “gay-bashing jokes” at plaintiff, and they kept written copies of the jokes in the bar next to The Grill.
Several female employees who worked in the LTP’s cart department complained to plaintiff that they felt uncomfortable around Weiss and Steen, particularly Weiss. The employees told plaintiff that Steen used offensive language, including calling them “bitch,” and that Weiss leered at them. In early 2001, plaintiff complained to Weiss that Steen was aggressive and [1178]unprofessional in the workplace toward women. In February or March, Weiss threatened to fire plaintiff if he “aired any dirty laundry”—i.e., spoke to the human resources department about anything that happened at the LTP’s food and beverage department. In May 2001, plaintiff sent Weiss an interoffice memorandum, stating; “Please refrain from your unprofessional remarks.” Plaintiff testified that his reference to “unprofessional remarks” included gay-bashing jokes and jokes about women. Weiss responded by bringing plaintiff into his (plaintiff’s) office and ordering everyone else out, locking the door, sitting plaintiff down in a comer, and delivering a tirade, after which he (Weiss) cmmpled up plaintiff’s interoffice memorandum and threw it at him. Plaintiff felt physically intimidated by Weiss.
On June 4, 2001, Steen was promoted to the newly created position of food and beverage operations manager for The Grill and the LTP’s golf course operations. On June 6, a female employee, Jayme Miller, told plaintiff she wanted to lodge a written complaint about the gay-bashing jokes she had heard Weiss and Steen tell about plaintiff and his partner. The next day, plaintiff met with Jim Fulks, the human resources director for Evans Hotels. During the meeting, which lasted over two hours, plaintiff complained about sexual orientation discrimination and harassment at the LTP and about the sexual harassment of his female coworkers. He also told Fulks about the vulgar language Weiss and Steen used in the workplace and that Miller would be filing a written complaint. Plaintiff became very emotionally upset and expressed the need to see a therapist for counseling. Fulks told plaintiff he (plaintiff) would have to ask Weiss’s permission to seek counseling and suggested he quit his job because “things like this get worse.” Fulks thought plaintiff was too upset to work, so he directed him to call Weiss and tell him he would not be able to come to work that day. When plaintiff returned to work the next day, however, he received an “Employee Warning Notice” for absenteeism from Weiss, stating: “You did not follow Evans Hotels’ policy by failing to notify your manager at least two hours before your starting time. You called at 11:31 a.m. You were scheduled for 12:00 noon.” Plaintiff had never received a written employee warning notice before. He immediately called Fulks and asked why he had been written up. Fulks said, “That’s the policy.”
On June 16, 2001, Miller had a friend deliver a letter to Fulks. In that letter, Miller complained about Weiss’s and Steen’s treatment of plaintiff and expressed her view that they were blackballing him. Fulks met with Miller shortly after receiving the letter, and Miller elaborated on the gay-bashing comments that Weiss and Steen made against plaintiff.
In a memorandum dated June 11, Weiss summarized various concerns about plaintiff’s performance as a manager. Weiss had never “written anybody up,” so Fulks gave him the format he should use to document his [1179]dissatisfaction with plaintiffs work performance. Weiss’s memorandum discussed plaintiff’s unsatisfactory performance in various areas and directed plaintiff to correct the issues within 30 days. The memorandum warned that “recurring performance problems may require further disciplinary action, which could lead to suspension and/or termination of employment at Evans Hotels.”
Plaintiff received a memorandum dated June 15, 2001, requesting him to meet with Weiss and Fulks on June 18 at the human resources department. Plaintiff was happy when he received the memorandum because he thought something was finally going to be done about the issues he had raised in his meeting with Fulks. However, when he arrived at the meeting, Fulks gave him Weiss’s June 11 memorandum and made it clear they would only discuss the work performance issues raised in that document. Plaintiff was shocked to receive the memorandum, which he viewed as a “30-day notice for poor work performance”—i.e., a 30-day notice to comply with the directives of the memorandum or be terminated. Fulks told him they would meet after 30 days to discuss his progress. Although plaintiff testified he “did not believe a single word on this memorandum,” he did not prepare a written response.
After plaintiff’s June 18 meeting with Weiss and Fulks, Weiss stopped talking to him and excluded him from the LTP weekly management meetings, which he formerly had attended. On June 19, Weiss and Steen continued to use offensive language in the workplace and plaintiff overheard Steen threaten to “punch the faggot in the mouth.” Plaintiff complained to Fulks about Steen’s threat. Fulks said he would talk to Weiss, but plaintiff never heard back from Fulks on the matter.
On July 19, 2001, plaintiff’s doctor put him on disability leave until August 13 for “on-the-job harassment.” Plaintiff’s doctor later extended the leave to September 5. While plaintiff was on leave, Fulks instructed Dan Ferbal, the corporate director of training for Evans Hotels, to take plaintiff out to lunch to see how he was doing and to discuss his return to work. At Fulks’s request, Ferbal proposed plaintiff transfer from his management position at the LTP to a supervisory position at another Evans Hotels property. Plaintiff told Ferbal he wanted to return to his job at the LTP and would not take a demotion.
When plaintiff’s disability leave expired, Fulks placed him on paid administrative leave because the issue of where he would return to work was still unresolved. Fulks and Bill Evans, who was managing director of Evans Hotels and a general partner of The Lodge, tried to persuade plaintiff to take a position at the other property, but plaintiff adamantly refused to transfer from his position at the LTP. Plaintiff later met with Fulks and Dan Fullen, the general manager of the LTP. They told him he could return to the LTP but [1180]he would have to take care of the performance issues raised by Weiss. Plaintiff testified they told him he was still on his 30-day probation and that the way he suddenly went on disability leave had “bum[ed] a bridge” with the LTP’s management. Plaintiff also testified that when he mentioned he had met with somebody in the DFEH, Fulks accused him of “blackmailing” the hotel and offered him $10,000 to drop his DFEH case. On September 25 the DFEH sent Fulks a “Notice of Filing of Discrimination Complaint” and a copy of the complaint plaintiff had filed with the DFEH the day before.
On September 28, plaintiff returned to work at the LTP as manager of The Grill. He continued to be excluded from meetings and Mullen advised him to watch his back because Weiss was “looking out to get dirt on [him].” Mullen testified that during a meeting sometime in the fall of 2001, Weiss said: “We’ve got to get Scott Jones out of here.”
In October, plaintiff filed an amended DFEH complaint. In November, he was excluded from a “coordination meeting” of Evans Hotels management employees regarding the upcoming Buick Invitational golf tournament. He had previously been included in Buick Invitational coordination meetings and his assistant was included in the November 2001 meeting. When plaintiff asked Fulks why he was excluded from the meeting and his assistant was allowed to attend, Fulks replied: “Because that’s what you wanted. That’s who [Weiss] is working with.”
Between December 28, 2001, and January 17, 2002, Weiss issued four different employee warning notices to plaintiff. The first notice was for missing work without notifying Weiss and the other three were for alleged violations of “standard operating procedures.” Plaintiff responded in writing to the first three notices, complaining that they had been issued for things that had never previously been a problem. Plaintiff did not respond to the last notice because he was “fed up.”
On January 22, 2002, plaintiff submitted a letter of resignation, giving two weeks’ notice. On January 24, Fulks hand-delivered plaintiff’s final paycheck and a letter responding to plaintiff’s resignation letter, telling plaintiff it was “time to go home” because his service was no longer needed. In his letter, Fulks referred to plaintiff’s “performance issues” and concluded with the statement: “I feel compelled to reiterate that your reasons and circumstances for leaving the Company should not be shared with other staff members of Evans Hotels in the interest of maintaining your confidentiality.” On January 25, Ferbal documented a conversation he had had that day with plaintiff. Plaintiff told Ferbal he was glad to be out of the LTP and that he had “had it” with the extreme harassment he had endured from Weiss. Ferbal reported: “[Plaintiff] was extremely upset with the warnings he had just received over [1181]the past few weeks. Stupid stuff.” Plaintiff told Ferbal that he had thoroughly enjoyed working for Evans Hotels, but he was sick of the abuse and wanted to feel better, and that he was worried about his health, which was his first priority.
B. Procedural History
The procedural history of this case is somewhat complicated. As relevant here, plaintiff sued The Lodge asserting causes of action for (1) wrongful constructive discharge in violation of public policy, (2) sexual orientation harassment, (3) sexual orientation discrimination, (4) retaliation, (5) breach of implied contract for continued employment, and (6) intentional infliction of emotional distress. Plaintiff also sued Steen and Weiss individually under the second, fourth, and sixth causes of action.
The trial court ultimately granted The Lodge’s motion for summary adjudication as to plaintiff’s first, second, fifth, and sixth causes of action, leaving only the sexual orientation discrimination and retaliation claims. The trial court granted Steen’s motion for summary adjudication as to all of the claims against him and entered judgment in his favor. The trial court granted Weiss’s motion for summary adjudication as to the second and sixth causes of action against him, leaving only the retaliation claim.
The remaining causes of action were tried to a jury, which returned a verdict in plaintiff’s favor on all of the claims against defendants. The jury awarded compensatory damages of $1,395,000 against The Lodge and $155,000 against Weiss. The court entered judgment on the verdict.
The Lodge and Weiss filed separate motions for judgment notwithstanding the verdict and, alternatively, a new trial. On April 22, 2005, the court granted the motions for judgment notwithstanding the verdict, concluding plaintiff had to establish an adverse employment action had been taken against him to succeed on both his discrimination and retaliation causes of action and there was insufficient evidence of an adverse employment action. With respect to Weiss, the court ruled an individual cannot be liable for retaliation. The court also granted the alternative motions for new trial. On May 9, 2005, the court entered a judgment in favor of The Lodge and Weiss.
After plaintiff appealed, the Court of Appeal unanimously reversed. With respect to the question of whether Weiss could be held individually liable for retaliation, the court primarily relied on the plain language of the retaliation provision (§ 12940, subd. (h)). We granted review to determine whether an individual may be held personally liable for retaliation.
[1182]II. Discussion
In detennining whether the Legislature intended to impose individual liability for retaliation, it is well settled that we must begin with the statutory language because it “generally provide[s] the most reliable indicator of legislative intent.” (Hsu v. Abbara (1995) 9 Cal.4th 863, 871 [39 Cal.Rptr.2d 824, 891 P.2d 804].) If the words are unambiguous, “we presume the Legislature meant what it said and the plain meaning of the statute governs.” (People v. Snook, supra, 16 Cal.4th at p. 1215.) Only when the statutory language is susceptible of more than one reasonable interpretation may the court turn to extrinsic aids, such as legislative history or public policy, to assist in interpreting the statute. (People v. Jefferson (1999) 21 Cal.4th 86, 94 [86 Cal.Rptr.2d 893, 980 P.2d 441].)
The pertinent language of section 12940, subdivision (h) makes it an unlawful employment practice for “any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Italics added.) On two previous occasions, this court has considered whether other subdivisions of section 12940, which use somewhat different language, impose individual liability. (See Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132 [90 Cal.Rptr.2d 804, 988 P.2d 1083] (Carrisales) [harassment]; Reno v. Baird (1998) 18 Cal.4th 640 [76 Cal.Rptr.2d 499, 957 P.2d 1333] (Reno) [discrimination].) In both cases, this court concluded that the subdivisions did not do so. However, as our holdings were predicated on statutory language not present in the retaliation provision at issue here, neither case is particularly helpful.
A. Our Prior Section 12940 Decisions Are Inapplicable to This Case
In Reno, supra, 18 Cal.4th 640, we considered whether section 12940, subdivision (a), which makes it unlawful for an “employer” to discriminate against employees, allows supervisors to be held personally liable for acts of discrimination. The plaintiff in Reno sued her employer and her supervisor, alleging that both had discriminated against her based on her medical condition in violation of the FEHA. (Reno, supra, 18 Cal.4th at p. 643.) Although subdivision (a) prohibits only an “employer” from engaging in improper discrimination, the plaintiff argued that her supervisor could nonetheless be held individually liable, relying on section 12926, subdivision (d), which defines “employer” as including “any person acting as an agent of an employer, directly or indirectly . . . .” (§ 12926, subd. (d); see Reno, supra, 18 Cal.4th at pp. 644-645.) The plaintiff accordingly reasoned that the Legislature intended that supervisors be held individually liable because supervisors, [1183]acting as employers’ agents, fit within the definition of “employer.” (Reno, supra, 18 Cal.4th at p. 647.)
We found section 12926, subdivision (d) to be ambiguous and amenable to two possible interpretations: either that (1) the Legislature intended to make every supervisor individually liable, as urged by the plaintiff, or (2) the Legislature merely intended to ensure that respondeat superior principles would apply by making employers hable for the actions of their supervisors, as urged by the defendant supervisor. (Reno, supra, 18 Cal.4th at p. 647.) In adopting the latter construction, we cited with approval the holding and reasoning of Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55 [53 Cal.Rptr.2d 741] (Janken). (Reno, supra, 18 Cal.4th at p. 663.) We primarily relied on the FEHA’s differential treatment of harassment and discrimination as evidenced by the differing language the Legislature used in the respective subdivisions. (Reno, supra, 18 Cal.4th at p. 645.) We noted that “[although the FEHA prohibits harassment as well as discrimination, it treats them differently. It prohibits ‘an employer ... or any other person’ from harassing an employee. (§ 12940, subd. (h)(1) [now subd. (j)(l)], italics added.) . . . The FEHA, however, prohibits only ‘an employer’ from engaging in improper discrimination. (§ 12940, subd. (a).)”4 (Reno, supra, 18 Cal.4th at p. 644.) We concluded that the Legislature, aware that different types of conduct gave rise to the different claims, “properly tailored the FEHA in order to address these distinct claims.” (Reno, supra, 18 Cal.4th at p. 657.)
The majority in this case argues that our reasoning in Reno applies with equal force to retaliation claims under section 12940, subdivision (h). (Maj. opn., ante, at p. 1164.) But Reno is distinguishable for several reasons. First, the language of the retaliation provision at issue in this case (subd. (h)) is entirely unlike the language of the discrimination provision (subd. (a)) we considered in Reno. As discussed above, the FEHA’s discrimination provision (subd. (a)) makes it an unlawful employment practice only when an “employer” discriminates. (Reno, supra, 18 Cal.4th at p. 644.) The FEHA’s retaliation provision, on the other hand, makes it an unlawM employment practice for “any employer, labor organization, employment agency, or person” to retaliate. (Subd. (h), italics added.) I find unpersuasive the majority’s assertion that the “language difference between subdivisions (a) and (h) of section 12940 is not as great as initially appears” (maj. opn., ante, at p. 1163). The Legislature’s decision to identify additional bad actors whose [1184]retaliatory conduct triggers liability is certainly significant, yet the majority accords the Legislature’s choice of words no weight.
Additionally, the majority’s claim that any language difference between the two subdivisions is minimal is belied by Reno. In an opinion written by the author of the majority in this case, we emphasized differences between the language of the FEHA’s discrimination and harassment provisions, the latter of which uses language nearly identical to the retaliation provision at issue here. (Reno, supra, 18 Cal.4th at p. 644.) Specifically, we noted that the FEHA “prohibits ‘an employer ... or any other person’ from harassing an employee (§ 12940, subd. [0(1)], italics added)” but “prohibits only ‘an employer’ from engaging in improper discrimination. (§ 12940, subd. (a).)” (Reno, supra, 18 Cal.4th at p. 644.) I find it difficult to comprehend how linguistic differences we found significant in Reno could suddenly be of no interpretive import here.5
Reno is distinguishable for a second reason. In rejecting the plaintiff’s argument that section 12940, subdivision (a) imposes individual liability because the word “employer” includes “any person acting as an agent of an employer” (§ 12926, subd. (d)), we concluded that the Legislature so defined “employer” to incorporate respondeat superior principles. (Reno, supra, 18 Cal.4th at p. 663.) Defendants argue that the Legislature may have had a similar purpose in adding the word “person” to the retaliation provision. Defendants’ assertion cannot be correct. The FEHA’s retaliation provision applies to “any employer, labor organization, employment agency, or person . . . .” (§ 12940, subd. (h), italics added.) Accordingly, it is the word “employer” in the provision that incorporates respondeat superior principles (see Reno, supra, 18 Cal.4th at p. 663) and ensures that an employer would be liable for its supervisors’ retaliatory conduct. It would be odd indeed for the Legislature to have added the word “person” to the retaliation provision to serve a function identical to that of the word “employer.” Such an interpretation is disfavored because it renders the word “person” surplusage. (People v. Cole (2006) 38 Cal.4th 964, 980-981 [44 Cal.Rptr.3d 261, 135 P.3d 669].) The presumption against surplusage applies with particular force when, [1185]as here, the language in question was added by amendment (Stats. 1987, ch. 605, § 1, p. 1942); such an interpretation would render the amendment unnecessary.
In relying on Reno, the majority also spends a great deal of time reiterating policy concerns that we first discussed in that case regarding the imposition of individual liability on supervisors. (Maj. opn., ante, at pp. 1164—1168.) Evaluating and resolving these concerns, however, is the province of the Legislature. Moreover, there is no reason to suppose that the Legislature was motivated by these concerns. Indeed, it may have reasonably believed that imposing individual liability would more effectively deter retaliation (ensuring employees would feel free to report unlawful employment actions without fear of retribution) and punish those who retaliate. Whatever the Legislature’s motivation, if a statute’s language clearly imposes individual liability, it is not for this court to second-guess the wisdom of the Legislature’s policy choices. Accordingly, Reno does not support the claim that the word “person” in section 12940, subdivision (h) does not impose individual liability.
In Carrisales, supra, 21 Cal.4th 1132, we considered whether an employee could be held individually liable for harassment under section 12940. The plaintiff sued her employer, her supervisors, and a coworker for sexual harassment. (Carrisales, supra, 21 Cal.4th at p. 1134.) Former subdivision (h) (now subd. (j)) made it unlawful for “an employer ... or any other person” to harass an employee. As plaintiff does here, the plaintiff in Carrisales argued that the word “person” in the harassment provision clearly demonstrated the Legislature’s intent to impose individual liability on employees who harass. (Carrisales, supra, 21 Cal.4th at p. 1135.)
We disagreed. While we acknowledged that the provision was susceptible of such an interpretation, we emphasized the need to read the language in light of the statute as a whole. (Carrisales, supra, 21 Cal.4th at p. 1135.) In deciding that the harassment provision did not impose individual liability, we specifically relied on the second sentence of section 12940, former subdivision (h)(1), which provided that “ ‘[h]arassment of an employee or applicant by an employee other than an agent or supervisor . . . shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.’ ” (Carrisales, supra, 21 Cal.4th at p. 1135, italics omitted.) Pursuant to that language, an unlawful employment practice occurred only when the employer (or its agents or supervisors) failed to immediately take appropriate corrective action in response to actual or constructive notice of harassment. (Id., at pp. 1135-1136.) We therefore reasoned the Legislature could only have intended for the employer to be held hable. (Id., at p. 1136.) The plaintiffs alternative interpretation would have meant that an employee’s individual [1186]liability would turn on whether the employer took immediate and appropriate corrective action, an absurd result. (Ibid.)
After we decided Carrisales, the Legislature abrogated our holding. (See McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 471 [20 Cal.Rptr.3d 428, 99 P.3d 1015].) As a result, the FEHA’s harassment provision now provides that “[a]n 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.” (§ 12940, subd. (j)(3).) As we acknowledged in McClung, supra, 34 Cal.4th at page 471, in enacting subdivision (j)(3), the Legislature indisputably expressed its intent to impose individual liability on employees who harass.
Defendants argue here that, taken together, Carrisales and the subsequent legislative response stand for the proposition that the word “person” in a subdivision of the statute does not support imposing individual liability, but rather that such liability is only imposed when the Legislature enacts language similar to that in section 12940, subdivision (j)(3).6 Defendants interpret Carrisales and the implication of the Legislature’s response too broadly. Our decision in Carrisales specifically rested on the second sentence in former subdivision (h)(1) (now subdivision (j)(l))—that sentence informed our understanding of the word “person” in the first sentence of the harassment provision. (Carrisales, supra, 21 Cal.4th at pp. 1135-1136.) No such language appears in the retaliation provision. (See § 12940, subd. (h).) To the contrary, unlike the FEHA’s harassment provision, subdivision (h) makes it clear that an unlawful employment practice occurs the moment a “person” retaliates against someone for opposing a forbidden practice. (Ibid.) Accordingly, as with Reno, Carrisales provides no support for the assertion that the Legislature did not intend for subdivision (h) to impose personal liability on individuals who retaliate.
B. Interpretation of “Person” in the Retaliation Provision
Having concluded that neither Reno nor Carrisales is dispositive of the issue presented here, I next consider whether the word “person” in section [118712]940, subdivision (h) is susceptible of more than one reasonable interpretation such that we should resort to extrinsic sources to assist in determining the Legislature’s intent. (People v. Jefferson, supra, 21 Cal.4th at p. 94.)
1. Plain language Interpretation
Plaintiff urges the court to adopt a plain and commonsense interpretation of the retaliation provision. (See Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299].) Plaintiff argues that, by making it unlawful for a “person” to retaliate (§ 12940, subd. (h)), the Legislature clearly expressed its intent to impose liability on any individual who retaliates.7 Such an interpretation has proved persuasive—every published state and federal opinion to have considered this issue has, as the Court of Appeal did in this case, adopted the interpretation advanced by plaintiff.8 Indeed, the majority, conceding that the statutory language is susceptible of such an interpretation (maj. opn., ante, at p. 1162; see Carrisales, supra, 21 Cal.4th at p. 1135 [regarding nearly identical statutory language]), does not cite a single case reaching a contrary conclusion.
Plaintiff’s argument has substantial merit, especially when one compares section 12940, subdivision (h) with the provisions we considered in Reno and Carrisales. Unlike the discrimination provision (subd. (a)) in Reno, which applies only to employers, the Legislature chose to include “person” as one of the entities in the retaliation provision whose conduct would trigger liability.9 Unlike the harassment provision in Carrisales (subd. (j)), which made harassment an unlawful employment practice only when an employer fails to take corrective action, the Legislature has made clear in subdivision (h) that an unlawful employment practice takes place when a “person” retaliates. In light of these linguistic differences between the retaliation provision on the one hand, and the discrimination and harassment provisions on the other, the [1188]ordinary, everyday meaning of the statutory language appears to impose personal liability on any individual who retaliates. (See Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 918 [80 Cal.Rptr. 89, 458 P.2d 33].)
2. “Incorporation” Interpretation
Notwithstanding canons of statutory construction which counsel us to follow the traditional and plain meaning of a statute’s words (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 763 [280 Cal.Rptr. 745, 809 P.2d 404]), the majority identifies, and ultimately adopts, a different interpretation—that the Legislature’s use of the word “person” in section 12940, subdivision (h) was intended to “incorporate[]” other provisions of the statute that are aimed at actions a “person” takes.10 (Maj. opn., ante, at p. 1164.) While the majority does not specify to which provisions of section 12940 it is referring, subdivisions (c) and (j) both apply to actions a “person” takes: subdivision (c) makes it unlawful “[f]or any person to discriminate . . . in the selection or training of [a] person in any apprenticeship training program . . .” and subdivision (j)(l) makes it unlawful for “an employer, labor organization, employment agency, ... or any other person” to harass. (See also id., subd. (i).)
Concluding that the word “person” was added to section 12940, subdivision (h) to “incorporate]] other unlawful employment practices defined in other parts of section 12940 . . .” (maj. opn., ante, at p. 1164, italics added), the majority fails to explain the implication of this “incorporation.” In light of its ultimate conclusion that subdivision (h) does not impose individual liability, the majority could only have two possible implications in mind: either (1) the Legislature’s addition of the word “person” to subdivision (h) provided certain victims of retaliation with a remedy that did not previously exist, because the word “person” appeared in other subdivisions (e.g., § 12940, subd. (c)), but did not appear in the retaliation provision, or (2) the word “person” was added to subdivision (h) for purely cosmetic reasons. Neither is plausible.
With regard to the first possible implication, before the Legislature added the word “person” to the retaliation provision (Stats. 1987, ch. 605, § 1, p. 1942), it was unlawful for “any employer, labor organization, or employment agency” to retaliate “against any person because the person has opposed [1189]any practices forbidden under this part . . . .” (§ 12940, former subd. (f), italics added; Stats. 1985, ch. 1151, § 2, pp. 3891, 3893.) One could claim that, prior to the addition of the word “person” to the retaliation provision, an individual who was discriminated against under subdivision (c) (apprenticeship training program), and was subsequently retaliated against for complaining, could not sue for retaliation. Any such claim is demonstrably false. Even if the list of entities at which the retaliation provision was aimed did not include the word “person,” there could be no doubt that a person retaliated against for opposing a violation of subdivision (c) (a “practice[] forbidden under this part” [subd. (h)]) could sue the discriminator’s employer for retaliation committed by the employer or by “any person acting as an agent of an employer” (§ 12926, subd. (d); see Reno, supra, 18 Cal.4th at p. 663). Therefore, it cannot be that the Legislature added the word “person” to subdivision (h) so that those retaliated against for opposing violations of subdivision (c) (or § 12940, subd. (j) [harassment]) would have a remedy.
The second possible implication, and the one the majority appears to have endorsed, is that the Legislature added the word “person” to section 12940, subdivision (h) for no reason at all, or for purely cosmetic purposes. Under this interpretation, both before and after the word “person” was added to subdivision (h), a person retaliated against for opposing any practice forbidden under section 12940 could sue. Additionally, according to the majority, both before and after the word was added, subdivision (h) imposed no personal liability on individuals who retaliate. The addition of the word “person” to subdivision (h), in the majority’s estimation, appears to have worked no change at all. Such a conclusion is dubious, particularly because, as previously noted, it renders the word “person,” and the amendment that added it, surplusage.
If these were the only two possible implications of this interpretation, I would conclude that the majority had not identified a reasonable alternative to a plain reading of the statutory language. But there is one other possible implication of this interpretation: the word “person” might have been added to section 12940, subdivision (h) to point back to, or incorporate, other provisions aimed at actions a “person” takes, and in so doing, incorporated the level of liability existing in the underlying provision. This interpretation would impose personal liability on an individual who retaliated against a person who complained of an unlawful employment practice that itself provides for individual liability.
Subdivision (c) illustrates this point. In that provision, the Legislature has made it unlawful for a “person” (and only a “person”) to discriminate in the selection or training of a person in any apprenticeship training program. (§ 12940, subd. (c).) It would be difficult to interpret subdivision (c) to allow [1190]suit against anyone other than the offending “person”—the subdivision does not identify anyone else the victim can sue other than the “person” who discriminated. If the offending “person” then retaliates against the victim for opposing the discrimination, the victim has suffered an independently actionable wrong and may now assert a retaliation claim under subdivision (h). As above, it would be difficult to say that subdivision (h) does not allow suit against that very same person for retaliating against the victim for opposing misconduct under subdivision (c). Accordingly, under the only reasonable implication of the majority’s “incorporation” interpretation, subdivision (h) does impose individual liability, at least against a “person” who retaliates against someone who opposes a violation of subdivision (c).
This reasoning applies with equal force to retaliation against a person who opposed the retaliator’s own harassment. As previously set forth, under section 12940, subdivision (j)(l), it is unlawful for “an employer ... or any other person” to harass an employee. In response to our decision in Carrisales, the Legislature enacted subdivision (j)(3), making clear that harassers are individually liable. As above with subdivision (c), if a supervisor may be held individually liable for harassment under subdivision (j), it logically follows that the word “person” in subdivision (h) permits suit against that very same supervisor for retaliating against an employee who opposes the supervisor’s own harassment.
That is precisely what transpired here. Plaintiff alleged that Weiss harassed him on the basis of his sexual orientation and sexually harassed female employees as well. Plaintiff complained to Weiss, asking him to stop. After Weiss ignored plaintiff’s entreaties, plaintiff complained to the human resources director and, ultimately, filed a charge with the DFEH. Plaintiff further alleged that, in response to his efforts to oppose Weiss’s harassment of women and of plaintiff, Weiss then retaliated against him.11 No one disputes that, under section 12940, subdivision (j)(3), Weiss can be held individually liable for his harassment.12 Accordingly, while an “incorporation” interpretation may be a reasonable alternative to a plain reading of the statutory language, the only plausible implication of such an interpretation is that [1191]subdivision (h) imposes personal liability on Weiss for retaliating against plaintiff for opposing Weiss’s own harassment.13
3. Resorting to Extrinsic Sources to Resolve the Legislature’s Intent
The language of section 12940, subdivision (h) is susceptible of two reasonable interpretations—either that the word “person” imposes personal liability on any individual who retaliates or that it points back to other subdivisions aimed at actions a “person” takes, incorporating the level of liability available in those provisions. Both of these interpretations would result in personal liability under the facts of this case. To resolve which interpretation more likely comports with the Legislature’s intent, I consider extrinsic sources.
I begin with the legislative history of the bill adding the word “person” to section 12940, subdivision (h). As the majority explains, the word “person” was added to the retaliation provision in 1987, effective January 1, 1988 (Stats. 1987, ch. 605, § 1, p. 1942), with the enactment of Assembly Bill No. 1167 (1987-1988 Reg. Sess.). (Maj. opn., ante, at p. 1169.) The bill was introduced on March 3, 1987, by Assemblymember Bill Bradley on behalf of the DFEH and the Fair Employment and Housing Commission (FEHC), which were involved in drafting and developing the bill.
As the majority further recounts, almost none of the legislative history specifically addresses the addition of the word “person” to the retaliation provision. (Maj. opn., ante, at pp. 1169-1170.) However, the one piece of legislative history that does specifically address the addition of the word “person” to the retaliation provision strongly suggests that it was added to create personal liability for anyone that retaliates. The staff of the DFEH and the FEHC prepared a summary of the proposed changes to the FEHA, [1192]including the addition of the word “person” to the retaliation provision.14 The summary describes the proposed changes to the retaliation provision, and then states: “Rationale: [f] The addition of the word ‘person’ is to conform with other sections of the Act which refer to unlawful conduct by a ‘person’. More importantly, the change will extend coverage to anyone who retaliates against an individual because that person filed a charge with DFEH. This will provide more protection to people exercising their lawful right to file with DFEH.” (Italics added.)
The summary’s statement that the addition of the word “person” to the retaliation provision would “extend coverage to anyone who retaliates” and “provide more protection” (italics added) clearly supports the plain language interpretation advanced by plaintiff, that any individual who retaliates may be held individually liable.15 The majority, by contrast, focuses on the first sentence of the summary’s rationale for the proposed changes, that the word “person” was added to “conform” to other subdivisions of section 12940 that refer to unlawful conduct committed by a “person.” (Maj. opn., ante, at pp. 1172-1173.) Even if the majority’s emphasis was correctly placed, that portion of the document still supports an interpretation resulting in individual liability for Weiss—that the word “person” was added to point back to uses of the word “person” in other subdivisions, thus incorporating the level of liability present in the underlying subdivision. What the summary’s language does not support is the majority’s claim that the word “person” was added for no reason at all.
Discussing other legislative history documents related to Assembly Bill No. 1167 (1987-1988 Reg. Sess.), the majority emphasizes that a number of documents, including the Legislative Counsel’s Digest, describe the changes the bill made as “technical and conforming.” (Maj. opn., ante, at pp. 1169-1171.) This general description of the bill’s changes is less than enlightening. Moreover, as the majority concedes, none of the documents to which it refers specifically mentions the addition of the word “person” to the retaliation provision. (Ibid.) Additionally, the notion that the changes were “conforming,” if anything, provides further support for the interpretation that the word “person” in the retaliation provision was intended to incorporate, or refer back to, other subdivisions aimed at unlawful conduct committed by a “person”—an interpretation that, as explained above, results in individual liability under the facts of this case.
[1193]In addition to the legislative history of Assembly Bill No. 1167 (1987-1988 Reg. Sess.), plaintiff also relies on the legislative history of Assembly Bill No. 1856 (1999-2000 Reg. Sess.), the bill abrogating our holding in Carrisales. An enrolled bill report prepared by the DFEH said that “[e]xisting law provides that when a person retaliates against another person for opposing practices forbidden by the FEHA ... a complaint may be filed against any employer, labor organization, employment agency, or person.” (DFEH, Enrolled Bill Rep. on Assem. Bill No. 1856 (1999-2000 Reg. Sess.) Sept. 11, 2000, p. 3.) While the majority correctly notes that a statement made in 2000 about a statute enacted in 1987 is neither binding nor conclusive in construing that statute (maj. opn., ante, at pp. 1171-1172), we have previously acknowledged that “the Legislature’s expressed views on the prior import of its statutes are entitled to due consideration, and we cannot disregard them.” (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 244 [62 Cal.Rptr.2d 243, 933 P.2d 507].)
Moreover, the DFEH’s enrolled bill report is particularly persuasive in light of section 12960, which sets forth the procedure for an aggrieved party to follow in filing a complaint regarding unlawful employment practices forbidden under section 12940. Section 12960, subdivision (b) provides that “[a]ny person claiming to be aggrieved by an alleged unlawful practice may file ... a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of . . . .”16 (Italics added.) It would be odd for the Legislature to have provided that an alleged victim could file a complaint against a person, if the Legislature did not intend for the person to be held personally liable.
A more plausible theory is that the Legislature adopted language in section 12960 to permit a filing of a complaint against each of the entities that may be held liable for violations of section 12940: any employer, labor organization, employment agency, or person. That the language of section 12960 essentially tracks the language of the retaliation provision only bolsters the plain language reading of section 12940, subdivision (h). It is difficult to reconcile the language of section 12960, which was added to the Government Code in 1980 (Stats. 1980, ch. 992, § 4, pp. 3140, 3155), with the majority’s interpretation that section 12940 provides for no individual liability with the exception of the harassment provision, which was amended to add such liability in 2001. If the majority is correct, it is hard to comprehend why the Legislature would have allowed, long before it abrogated our decision in Carrisales, individuals to be named in complaints for violating section 12940 provisions.
[1194]In light of the legislative history, the statutory context in which section 12940, subdivision (h) is placed, and well-established canons of statutory interpretation that counsel us to adopt the plain and commonsense meaning of the words the Legislature has employed, I conclude that the Legislature intended the word “person” in subdivision (h) to mean that any individual who retaliates may be held personally liable. Even if this interpretation were incorrect, the only other plausible interpretation of the statutory language would similarly result in imposing personal liability under the facts of this case. What cannot be supported is the notion that the Legislature intended for no individual liability to be available under any circumstances. Accordingly, I dissent. Fortunately, the majority’s adoption of an interpretation of the statute that has no support in its language or legislative history is not the final word on the meaning of the statute. The Legislature can, and should, clarify that meaning.
Kennard, J., and Werdegar, J., concurred.
Appellant’s petition for a rehearing was denied April 30, 2008. Kennard, J., Werdegar, J., and Moreno, J., were of the opinion that the petition should be granted.
All further unlabeled statutory references are to the Government Code.
The factual and procedural history is taken from the Court of Appeal’s opinion.
The Lodge is affiliated with Evans Hotel Corporation (Evans Hotels), which owns or is involved in the operation of a number of hotels, including the LTP.
At the time of our decision in Reno, harassment was addressed in section 12940, former subdivision (h). Retaliation was addressed in former subdivision (f). Two Assembly bills amended the section effective January 1, 2001. (Assem. Bill No. 1856 (1999-2000 Reg. Sess.); Assem. Bill No. 2222 (1999-2000 Reg. Sess.).) The legislation added two new subdivisions and redesignated several former subdivisions. (Stats. 2000, ch. 1047, § 1; id., ch. 1049, §§ 7.5, 11.) Accordingly, former subdivision (h) (prohibiting harassment) is now subdivision (j), and former subdivision (f) (prohibiting retaliation) is now subdivision (h).
Indeed, the Janken court (whose reasoning formed a substantial basis of our decision in Reno, supra, 18 Cal.4th at pp. 645-663, and on which the majority here again relies [maj. opn., ante, at pp. 1163-1167]) found the linguistic difference between the EEHA’s discrimination and harassment provisions to be of critical importance. (Janken, supra, 46 Cal.App.4th at p. 65.) Focusing on the Legislature’s use of the words “any other person” in the harassment provision (now § 12940, subd. (j)(l)), Janken concluded that “the question of individual liability for harassment seems clearly answered in California.” (Janken, supra, 46 Cal.App.4th at p. 67, fn. 19.) As previously noted, identical phrasing appears in the retaliation provision. (§ 12940, subd. (h).)
Similarly, the majority points to section 12940, subdivision (j)(3) as an example of “clear language imposing personal liability on all employees . . . .” (Maj. opn., ante, at p. 1162.) While the Legislature did abrogate Carrisales in unmistakably clear language, this does not mean that anything short of subdivision (j)(3)’s language cannot express the Legislature’s intent to impose such liability. When the Legislature provides, as it does in a great number of statutes, that it is unlawful for X to do Y, it typically means that, having done Y, X has violated the law and may be sued for doing so. The majority has identified no persuasive rationale to treat this statute any differently, let alone a rationale grounded in statutory language or the legislative history.
The FEHA defines “person” as including “one or more individuals . . . .” (§ 12925, subd. (d).)
(E.g., Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1236-1237 [51 Cal.Rptr.3d 206]; Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237, 1240-1242 [121 Cal.Rptr.2d 806]; Page v. Superior Court (1995) 31 Cal.App.4th 1206 [37 Cal.Rptr.2d 529]; Winarto v. Toshiba America Electronics Components (9th Cir. 2001) 274 F.3d 1276, 1288; Peterson v. Santa Clara Valley Medical Center (N.D.Cal., Jan. 7, 2000, No. C 98-20367) 2000 WL 98262; Soo v. United Parcel Service, Inc. (N.D.Cal. 1999) 73 F.Supp.2d 1126; Liberto-Blanck v. City of Arroyo Grande (C.D.Cal. 1999) 33 F.Supp.2d 1241; Kaminski v. Target Stores (N.D.Cal., Sept. 4, 1998, No. C98-2271) 1998 WL 575097.)
Indeed, in deciding that subdivision (h) does not impose liability on a “person” who retaliates, the majority treats the word “person” in a unique manner. There is no doubt that the other entities identified in subdivision (h)—an employer, labor organization, or employment agency—may be sued for their retaliatory conduct. Treating one of the identified entities in a manner different from the others is odd, absent a principled basis for doing so, since the language of the subdivision appears to similarly situate the listed entities.
As discussed above (see ante, at pp. 1184—1185), defendants argue the Legislature could also have added the word “person” to ensure that an employer would be liable for its supervisors’ retaliatory actions. The majority does not address this theory and it is easily dismissed. The Legislature having already incorporated respondeat superior principles via the use of the word “employer” in section 12940, subdivision (h) (see Reno, supra, 18 Cal.4th at pp. 644-645; § 12926, subd. (d)), defendants would have us conclude the Legislature chose to do so again by adding the word “person” as well. This interpretation is not plausible.
The jury obviously was persuaded that Weiss retaliated. It returned a verdict in plaintiff’s favor on his retaliation claim against Weiss, awarding $155,000 in compensatory damages against Weiss.
I acknowledge that the trial court granted Weiss’s motion for summary judgment on plaintiffs harassment claim. However, contrary to the majority’s assertion (maj. opn., ante, at p. 1168, fn. 4), this does not alter the analysis. It is well established that retaliation is an independently actionable claim that does not require that a plaintiff prevail on the underlying unlawful employment action so long as the plaintiff has a reasonable, good faith belief he or she was opposing an unlawful employment action. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043 [32 Cal.Rptr.3d 436, 116 P.3d 1123].) Given the facts recited by the Court of Appeal, one would be hard pressed to conclude plaintiff had no such good faith belief that Weiss was engaging in unlawful harassment. Indeed, notwithstanding its granting of the [1191]summary judgment motion, the trial court instructed the jury that they could find that Weiss retaliated against plaintiff because plaintiff opposed unlawful harassment.
Although I believe that examining policy considerations is only warranted when the statutory language does not clearly resolve the issue (see ante, at p. 1185), I do note that this “incorporation” interpretation would minimize many of the policy concerns focused on by the majority. (See maj. opn., ante, at pp. 1164-1168.) Under this interpretation, a supervisor could only be held individually liable for retaliation if he or she was motivated by an individual’s opposition to that supervisor’s harassment. As the majority notes, “ ‘ “harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” ’ ” (Maj. opn., ante, at p. 1164, quoting Reno, supra, 18 Cal.4th at pp. 645-646.)
The summary was the first document in the legislative bill file of the Assembly Committee on Housing and Community Development, the policy committee to which Assembly Bill No. 1167 (1987-1988 Reg. Sess.) was referred.
Because the FEHC and the DFEH sponsored, developed, and helped to draft Assembly Bill No. 1167 (1987-1988 Reg. Sess.), we should accord their interpretation of the legislation significant respect. (See Reimel v. Alcoholic Bev. etc. Appeals Bd. (1967) 254 Cal.App.2d 340, 345 [62 Cal.Rptr. 54].)
Section 12960 was derived from Labor Code former section 1422. (Stats. 1959, ch. 121, § 1, pp. 1999, 2003.)