Aiding and Abetting: When Individual Employees Are Personally Liable for Discrimination
The supervisor who carried out the discriminatory termination. The HR manager who approved it. The colleague who provided the pretextual documentation. Each of them — as individuals — may be personally liable under FEHA for aiding and abetting the employer’s discrimination.
Government Code section 12940, subdivision (i), makes it unlawful for “any person” to aid, abet, incite, compel, or coerce the doing of any act forbidden by FEHA. This provision creates individual liability — personal, out-of-pocket liability — for anyone who participates in the employer’s discriminatory conduct.
This is distinct from supervisor harassment liability (where the supervisor is liable for their own harassing acts). Aiding-and-abetting liability attaches to anyone — supervisor or not — who assists, facilitates, or participates in the employer’s discrimination or retaliation.
Who can be liable
The supervisor who recommended the termination. A supervisor who provided a pretextual performance evaluation — one designed to justify a discriminatory termination — has aided the discrimination by creating the documentation the employer used to carry it out.
The HR manager who approved the decision. An HR manager who knew the termination was discriminatory — who knew the stated reason was pretextual, who knew the real motive was unlawful — and who approved the termination rather than preventing it has aided the discrimination.
The colleague who provided false information. A coworker who fabricated a complaint, who provided false testimony during an investigation, or who participated in the construction of a pretextual case against the employee has aided the discrimination by contributing to the mechanism that produced the adverse action.
The executive who ratified the decision. A senior leader who reviewed the termination decision, knew or should have known it was discriminatory, and approved it has aided the discrimination through ratification.
What aiding and abetting requires
The aiding-and-abetting claim requires: (1) that the employer committed a FEHA violation (discrimination, harassment, or retaliation); (2) that the individual knew the employer’s conduct was unlawful; and (3) that the individual provided substantial assistance or encouragement to the unlawful conduct.
“Substantial assistance” does not require that the individual be the primary actor. It requires participation — contributing to the discriminatory outcome in a way that facilitated or encouraged it. The participation can take many forms: creating pretextual documentation, approving an unlawful decision, failing to intervene when intervention was required, or actively assisting in the discriminatory act.
Why it matters
Aiding-and-abetting liability matters because it extends personal accountability beyond the harasser to every person who participated in the unlawful conduct. The supervisor who wrote the pretextual PIP. The HR manager who ignored the red flags. The executive who signed off. Each of them faces personal exposure — damages payable from their own assets, not from the employer’s insurance.
The personal exposure changes behavior. An HR manager who knows they can be held personally liable for approving a discriminatory termination is more likely to push back on the termination than one who believes the employer alone bears the risk. An executive who knows their name will appear on the complaint as an individual defendant is more likely to scrutinize the decision.
Aiding-and-abetting liability also provides an additional source of recovery for the employee. If the employer lacks resources — if it is small, uninsured, or insolvent — the individual defendants may have personal assets from which a judgment can be satisfied.
What employees should know
An employee who believes that specific individuals participated in the discriminatory conduct — by creating pretextual documentation, by approving the unlawful decision, or by facilitating the discrimination in any substantial way — should discuss aiding-and-abetting liability with their attorney. Naming individual defendants under section 12940(i) adds parties, adds exposure, adds leverage, and adds a level of personal accountability that a claim against the employer alone does not provide.
Under FEHA, any person who aids, abets, or participates in discrimination or retaliation is personally liable — not just the employer entity, but the individuals who made it happen. The supervisor who created the pretextual record, the HR manager who approved the decision, the executive who ratified it — each of them may be held personally accountable.
This article is general information about California law and is not legal advice. Every situation turns on its particular facts.