Academic journal article The University of Memphis Law Review

Employment Law-Carr V. United Parcel Service: Individual Liability under the Tennessee Human Rights Act

Academic journal article The University of Memphis Law Review

Employment Law-Carr V. United Parcel Service: Individual Liability under the Tennessee Human Rights Act

Article excerpt

In Carr v. United Parcel Service,1 Kelly Carr alleged that she was subjected to physical and verbal sexual harassment by Ron Foster, a co-worker at her place of employment, United Parcel Service (UPS). Foster's acts included making sexual comments and rubbing Carr's posterior.2 Carr further alleged that two supervisors, Martin Sisk and Andrew Martin, witnessed or otherwise were aware of the sexual harassment and failed to take any remedial action.3 Carr brought an action in the United States District Court for the Middle District of Tennessee under Title VII of the Civil Rights Act of 1964 4 (Title VII) and the Tennessee Human Rights Act5 (THRA), naming the three individuals and UPS as defendants.6

The three individual defendants moved for a judgment on the pleadings, arguing that there is no individual liability under either Title VII or the THRA.7 The district court certified the issue of individual liability under the THRA to the Tennessee Supreme Court.8 The Tennessee Supreme Court held, individual defendants cannot be held liable under the THRA either as an employer or, under these facts, for aiding and abetting an employer's violation of the THRA. Carr v. United Parcel Serv., 955 S.W.2d 832, 834 (Tenn. 1997).

The Carr outcome was the logical result of a structured analysis based on the court's definition of two key terms in the THRA: "employer"9 and "aider or abettor."10 The definition of "employer" is rooted in the history and language of Title VII. 11 "Aider and abettor" derives its roots from the common law of torts. State courts often look to federal interpretations of Title VII to determine the scope of the term "employer." Aiding and abetting analysis looks to decisions both outside employment discrimination and within the context of other states' fair employment practices statutes.

In developing the analytical context of the Carr decision, this Comment first examines the differing federal analyses of the term "employer." Then, the Comment develops the historical and employment basis for the aiding and abetting provision, which includes the common law definition in a tort context and a review of case law applying aiding and abetting provisions of other states' antidiscrimination acts. Next, an analysis of previous Tennessee decisions interpreting the THRA precedes the discussion of the Carr decision. The Comment concludes with observations on possible future effects of the Carr decision.

Like Title VII, the THRA lists specific discriminatory practices for an employer.12 Title VII and the THRA share the same goals and policies. In Bennett v. Steiner-Liff Iron & Metal Co.,13 the Tennessee Supreme Court acknowledged that the policies of the THRA and federal civil rights laws are the same. In Bennett, the Tennessee Court of Appeals reversed the trial court and reinstated a retaliation claim under the THRA, ruling that it was within the state's three-year statute of limitations for actions against property.14 In reversing the appellate court, the supreme court looked to the stated purpose of the THRA, which is "to provide for execution within Tennessee of the policies embodied in the Federal Civil Rights Act."15 Using a oneyear statute of limitations applicable to federal civil rights actions, the court dismissed the action as untimely under the THRA.16

As Carr demonstrates, an employee filing an action under Title VII may not only wish to pursue an action against an employer as an entity, but may also wish to name individuals as defendants. Although the United States Supreme Court has not ruled on the issue of individual liability under Title VII, the majority of the courts of appeals have held that there is no individual liability under the Act.17

The circuits that have ruled against individual liability under Title VII have advanced several rationales for choosing not to interpret literally the statutory definition of employer as imposing individual liability. These constructions must counter the plain meaning of an "employer," which is defined in Title VII as a "person" employing the requisite number of employees or that person's "agent. …

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