Published June 2001

Court: Supervisors can
be sued for discrimination

By Jack Goldberg
Columnist

Are you personally at risk for workplace discrimination and harassment liability? Although individuals are not currently liable for discrimination or harassment under federal Title VII of the Civil Rights Act, some states allow employees to sue their employing company, their managers and, at least in California, their fellow employees.

The Washington state Supreme Court recently ruled that supervisors could be personally sued for discrimination under Washington’s Law Against Discrimination. The case consolidated two separate cases.

In both cases, the relevant dispute centered on the definition of the term “employer.” Washington’s law states it is an unfair practice for any employer to discriminate against a person in terms of employment because of age, sex, marital status, race, creed, color, national origin or the presence of a disability.

“Employer” is defined as “any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons …”

Ruling on the cases, the court decided the statute contemplated individual liability, and, therefore, a supervisor who acts in the interest of an employer can be individually liable for his or her own discriminatory acts as long as he or she works for a company with eight or more employees. The court supported its finding by stating there is a strong legislative intent in Washington to eliminate all discrimination in employment.

Washington is not alone in allowing individual liability under workplace discrimination laws. The Washington state Supreme Court noted that four other jurisdictions have fair employment statutes that define “employer” substantially the same as Washington’s does. Of those four, says the court, two have ruled on the question of individual liability and also have concluded that the definition of “employer” encompasses individual supervisor liability. Those two jurisdictions are the District of Columbia and Ohio.

The California Fair Employment and Housing Act is more direct in its application of anti-discrimination laws to individuals. It states employees may be personally liable for their own harassing behavior and does not limit the reach of the law to supervisors.

Previously, individuals did not worry about personal liability under workplace discrimination laws. Typically, statutes placed the burden on employers to create a work environment free from discrimination.

Employers have well-known obligations to establish nondiscriminatory practices, to train on those practices and to take action when discrimination is reported. While the employee might be subject to employer discipline for his or her actions, individual civil liability was not generally contemplated, and plaintiffs concentrated their efforts on the employer company.

Now, however, the potential for individual liability is apparent. Employers may want to add information about the potential for individual liability into their training programs on discrimination and harassment. This will emphasize the importance of the company’s anti-discrimination policies and practices and will warn employees of the risks of acting contrary to applicable laws.

In addition, employers may want to review their procedures for discipline and termination to ensure they have proper safeguards in place for reviewing discipline decisions.

Jack Goldberg is President of Personnel Management Systems Inc., with offices in Everett, Kirkland and Tacoma. The PMSI Web site is www.hrpmsi.com.

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