Suing the Bastard Boss: Personal Liability of Supervisors for Workplace Sexual Harassment: Federal and State Civil Rights Statutes Are Poor Vehicles to Reach Offending Supervisors. Employers Themselves Should Discipline the Transgressors
Jensen-Welch, Jill, Defense Counsel Journal
TO WHAT extent are supervisors individually and personally liable for sexual harassment in employment under Title VII of the Civil Rights Act of 1964 and under state law? What are the alternate causes of action?
Civil rights statutes are not suited to provide personal tort-like liability for wrong-doing manifested in the employment relationship. The government should not and cannot seek to legislate general respect and civility in the workplace by allowing employees to sue their supervisors, subordinates or colleagues under the guise of employment discrimination protection. Most statutory remedies for sexual harassment properly place the onus for a safe and productive workplace on the employer. For those few cases of particularly egregious harassment, where additional personal recourse against the offending employee may be warranted, current tort law provides sufficient redress. There is no need to stretch employment discrimination statutes to encompass individual liability, nor is a new tort needed.
INDIVIDUAL SUPERVISORY LIABILITY UNDER TITLE VII
A. Statutory Provisions
The pertinent portion of Title VII that has been construed to prohibit sexual harassment states:
It shall be an unlawful practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. (1)
This section bears the heading "Unlawful employment practices," and the subheading covers "Employer practices." At first blush, it would appear that Title VII fixes liability only on employers, as there is no reference in this part of the statute to agent or individual liability.
Title VII goes on to define "employer" as:
A person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty of more calendar weeks in the current or preceding calendar year, and any agent of such a person. (2)
While there have been a plethora of cases, law review articles and treatises on the topic of Title VII employer liability for the acts of supervisors, (3) a somewhat less explored topic is whether Title VII places individual and personal liability on supervisors for their actions. (4) Specific to sexual harassment, all but one federal court of appeals has addressed the issue of individual liability under Title VII and found no support for such an interpretation. They are:
* Second Circuit: Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir. 1995);
* Third Circuit: Sheridan v. E.I. DuPont de Neumours & Co., 100 F.3d 1061, 1077 (3d Cir. 1996);
* Fourth Circuit: Lissau v. S. Food Service Inc., 159 F.3d 177, 180 (4th Cir. 1998);
* Fifth Circuit: lndest v. Freeman Decorating Inc., 164 F.3d 258, 262 (5th Cir. 1999);
* Sixth Circuit: Wathen v. General Electric Co., 115 F.3d 400, 405 (6th Cir. 1997);
* Seventh Circuit: Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995);
* Eighth Circuit: Spencer v. Ripley County State Bank, 123 F.3d 690, 691-92 (8th Cir. 1997);
* Ninth Circuit: Miller v. Maxwell's International Inc., 991 F.2d 583, 587-88 (9th Cir. 1993);
* 10th Circuit: Haynes v. Williams, 88 F.3d 898,901 (10th Cir. 1996);
* 11th Circuit: Busby v. City of Orlando, 931 F.2d 764, 772 (llth Cir. 1991); and
* D.C. Circuit: Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir. 1995).
Only the First Circuit has not yet squarely met the issue, and the controversy splits its five district courts? Three of the five district courts.(5) (New Hampshire, Maine and Puerto Rico) have consistently followed the majority rule; one (Rhode Island) has consistently followed the minority rule; one (Massachusetts) has used both rules, depending on the judge hearing the case. …