In Haligowski v. Superior Court, 200 Cal. App. 4th 983 (2011), the Court of Appeal considered whether supervisors can be personally liable for discriminating or retaliating against employees who seek time off from work to comply with their military obligations, concluding that they cannot.

In this case, the plaintiff was called to active duty with the Navy, and when he returned from his six-month deployment in Iraq and asked for his job back, his supervisor and the regional manager informed the plaintiff that he was fired. 

The plaintiff sued Safway Services, LLC as well as his supervisor and the regional manager for discrimination and retaliation in violation of Military and Veterans Code Sections 394(a) and (d).  The Court reviewed Sections 394(a) and (d), which provide respectively:

“No person shall discriminate against any officer, warrant officer or enlisted member of the military or naval forces of the state or of the United States because of that membership.  No member of the military forces shall be prejudiced or injured by any person, employer, or officer or agent of any corporation, company, or firm with respect to that member’s employment, position or status or be denied or disqualified for employment by virtue of membership or service in the military forces of this state or of the United States.”

Section 394(a).

“No employer or officer or agent of any corporation, company, or firm, or other person, shall discharge any person from employment because of the performance of any ordered military duty or training or by reason of being an officer, warrant officer, or enlisted member of the military or naval forces of this state ….”

Section 394(d).

Reconciling this language with similar language in the anti-discrimination and anti-retaliation provisions of California’s Fair Employment & Housing Act, the court concluded:

“As both the FEHA and section 394 are antidiscrimination statutes, the logic for declining to hold individuals personally liable for discrimination and retaliation under the FEHA should apply to section 394. . . . [W]e hold that the use of the word “person” in section 394 does not attach personal liability to supervisors for acts that turn out later to be discriminatory against members of the military or naval forces where those acts arose out of the performance of normal management duties.  Plaintiffs who are subject to military duty or training that interrupts their work may hold their employers, but not individuals, liable for discrimination in violation of section 394. The plaintiff employee’s target remains the employer.”


Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at to learn more about us.

Polina Bernstein

Polina Bernstein

Polina Bernstein founded Bernstein & Friedland, P.C. in 2009 and is lead litigation counsel at the firm.

Diana Friedland

Diana Friedland

Diana Friedland is a partner at Bernstein & Friedland, P.C. Her practice focuses on employment litigation and counseling.

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