When Your Supervisor Can Be Sued Personally for Harassment
Most employment claims are brought against the employer — the company, the organization, the entity. Harassment claims are different. Under California law, the individual supervisor who committed the harassment can be held personally liable. This changes the dynamics of the case in ways that both employees and supervisors should understand.
There is a distinction in California employment law that most people — including many who work in HR — do not fully appreciate. Discrimination claims under FEHA are brought against the employer. The individual supervisor who made the discriminatory decision is not personally liable for discrimination — the liability runs to the organization. But harassment is different. The individual who commits the harassment can be sued in their personal capacity, and a judgment against them attaches to their personal assets.
This distinction matters because it changes what is at stake — not only for the employee, but for the harasser.
The legal basis
Government Code section 12940, subdivision (j)(3), provides that an employee of an entity with five or more employees is personally liable for harassment when the employee’s harassment is directed toward a specific person. The statute does not limit personal liability to supervisors — any employee who commits harassment can be personally liable — but in practice, personal liability most often attaches to supervisors because supervisors are the individuals most likely to commit harassment that meets the statutory threshold and because the power dynamic inherent in supervision makes the harassment more severe.
The employer is also liable. For harassment by a supervisor, the employer is strictly liable — meaning it is responsible regardless of whether it knew about the harassment and regardless of whether it took corrective action. For harassment by a non-supervisory coworker, the employer is liable if it knew or should have known of the harassment and failed to take immediate and appropriate corrective action.
The two sources of liability — the employer’s and the individual’s — are independent. The employee can sue both the company and the harassing supervisor. A judgment can be entered against both. And the individual’s liability is not contingent on the employer’s — the supervisor owes damages in their own right.
What personal liability means
A judgment against an individual harasser attaches to that person’s personal assets — their bank accounts, their property, their future earnings. It is not covered by the employer’s insurance unless the employer has specifically agreed to indemnify the individual, and many employers decline to do so when the conduct was willful or criminal.
This means a supervisor who sexually harasses a subordinate, who racially harasses a coworker, or who subjects an employee to severe or pervasive harassment based on any protected characteristic faces not only professional consequences but financial ones. The judgment is personal. It follows the individual regardless of whether they remain employed by the company.
For the employee bringing the claim, the availability of personal liability serves two functions. It adds a defendant with independent assets, which can matter when the employer is small or financially unstable. And it creates settlement pressure on the individual supervisor, who has a personal incentive to resolve the case that is separate from — and sometimes at odds with — the employer’s litigation strategy.
Why harassment and not discrimination
The distinction between harassment and discrimination for purposes of individual liability is doctrinal, not intuitive. Both are unlawful. Both cause harm. But the Legislature chose to impose personal liability only for harassment, and the reason lies in the nature of the conduct.
Discrimination claims typically challenge organizational decisions — hiring, firing, promotion, compensation — that are made by or on behalf of the employer. These decisions are institutional acts, and liability for them runs to the institution. A supervisor who fires an employee for a discriminatory reason is acting as the employer’s agent, and the employer bears the liability.
Harassment is personal conduct. It is not an institutional decision but an individual’s behavior — comments, advances, hostility, intimidation — directed at a specific person. The harasser is not carrying out an organizational function. The harasser is inflicting harm through their own words and actions. Personal liability attaches because the conduct is personal.
This does not mean that harassment is less serious as an institutional matter. The employer’s strict liability for supervisor harassment reflects the Legislature’s recognition that the organization bears responsibility for the conduct of those it empowers with authority. But the individual who commits the harassment also bears responsibility — and FEHA ensures that both are accountable.
Aiding and abetting
FEHA also provides for individual liability under Government Code section 12940, subdivision (i), which makes it unlawful for any person to aid, abet, incite, compel, or coerce the doing of any act declared unlawful by the statute. This provision can reach individuals who facilitate discrimination or harassment — an HR director who participates in a retaliatory termination, a manager who helps cover up a supervisor’s harassment, or any individual who actively assists in the unlawful conduct.
Aiding and abetting liability extends beyond harassment to discrimination and retaliation. An individual who does not personally discriminate but who knowingly assists in the discriminatory act can be held personally liable under this provision.
What this means for employees
An employee who has been harassed by a supervisor should understand that the claim can be brought against both the employer and the individual. This is not a choice the employee must make — both can be named as defendants in the same action.
The availability of personal liability against the supervisor is particularly significant in several scenarios: when the employer is a small business with limited assets; when the employer is no longer in business; when the harasser has left the company and the employer claims it is not responsible for a former employee’s conduct; and when the individual harasser’s personal exposure creates settlement leverage that the employer’s institutional exposure alone does not.
An attorney evaluating a harassment claim will consider both the employer’s liability and the individual’s, and will advise on whether naming the individual defendant strengthens the case.
If you were harassed by a supervisor or coworker, California law holds both the employer and the individual accountable. The supervisor who committed the harassment can be sued personally — and a judgment against them attaches to their personal assets. This is not a technicality. It is a feature of the law that reflects the personal nature of the harm.
This article is general information about California law and is not legal advice. Every situation turns on its particular facts.