Author:Celia Garrett

Kansas Bar Journals

Volume 65.

65 J. Kan. Bar Assn. December, 20 (1996).


Journal of the Kansas Bar AssociationDecember, 1996BOSSES BEWARE--IT'S A JUNGLE OUT THERE: SUPERVISOR LIABILITY IN EMPLOYMENT LITIGATIONCelia GarrettScott Nehrbass

Copyright (c) 1996 by the Kansas Bar Association; Celia Garrett and Scott Nehrbass

I. Introduction

Supervisors are frequently a target for disgruntled employees in lawsuits arising from workplace disputes. Whether a plaintiff may directly sue and recover from a supervisor varies depending on the claim asserted. Supervisor liability under federal and state discrimination statutes has been treated inconsistently by courts and is an issue that continues to generate substantial controversy. In contrast, under the federal wage and leave acts and state common law claims, it is fairly clear that supervisors may be held personally responsible for employment law violations.

This article discusses the extent to which supervisors are exposed to personal liability in employment litigation. The first part of the article focuses mainly on the potential for liability under federal employment statutes commonly utilized by plaintiffs, addressing corresponding Kansas statutes when helpful. The second part of the article examines Kansas common law causes of action and their significance to supervisor liability.

*21 II. Supervisor liability under federal and state statutes

A. Title VII

Title VII provides remedies for employees suffering discrimination based on race, color, religion, sex or national origin. [FN1] Whether Title VII imposes supervisor liability is a question that has divided the federal circuit courts and caused intracircuit splits, remaining a dynamic issue. [FN2] The current law in the Tenth Circuit is that supervisors are not personally liable for Title VII violations.

The controversy regarding supervisor liability under Title VII centers around the statute's definition of "employer." Title VII defines "employer" as " . . . any person engaged in an industry affecting commerce who has fifteen or more employees . . . and any agent of such a person." [FN3] Title VII does not define the term "agent," leaving the courts to determine its meaning. They have done this in two distinct ways.

The first approach is to define "agent," and thus "employer," as including supervisory employees and holding them personally liable under Title VII. [FN4] This view purports to further congressional intent to eliminate discrimination from the workplace and to hold those practicing discrimination personally responsible. [FN5]

The second common interpretation is that Title VII's use of the word "agent" merely ensures that employers who otherwise meet the 15-employee statutory threshold are held vicariously liable for the discriminatory acts of their supervisory personnel. This approach focuses on Title VII's limitation of "employer" to those with 15 or more employees. Regarding the 15 or more employee requirement as an indication of Congress's intent to protect small entities from the costs of litigating discrimination claims, some courts have concluded that it would be incongruous to allow civil liability to run against individual employees. [FN6]

1. Sauers v. Salt Lake County

The Tenth Circuit has adopted the latter view, squarely holding in Sauers v. Salt Lake County [FN7] that individual capacity suits are inappropriate under Title VII. Supervisors may be sued in their official capacities, however.

In Sauers, the court explained that a plaintiff may sue the employing entity under Title VII either by naming supervisory employees as agents of the employer or by naming the employer directly. [FN8] An official capacity suit does not provide an avenue of relief against the individual, but operates only as an alternative means of naming the individual's employer. [FN9] When a plaintiff names both the employing entity and individual supervisors in a Title VII claim, Kansas federal district courts have been quick to dismiss the claim against the individuals because it essentially duplicates the claim against the employer. [FN10] Hence, for purposes of Title VII, it is ordinarily appropriate to name only the employer as a defendant.

If the plaintiff wishes to name the supervisor in the supervisor's official capacity as an alternative means of naming the employer, the plaintiff must establish that the supervisor had sufficient authority to be given the status of "employer." The Tenth Circuit allows Title VII suits against individuals in their official capacity only if they serve in a supervisory position and exercise significant control over the plaintiff's hiring, firing or "terms and conditions" of employment. [FN11] The Circuit has not elaborated on this rule, but the Kansas federal district courts have held (in unpublished decisions) that a supervisory employee does not need to have ultimate authority to hire or fire to qualify as an employer as long as the supervisor has significant input into personnel decisions. [FN12] Furthermore, an employee may exercise supervisory authority even though the company has formally designated another individual as the plaintiff's supervisor. [FN13] If the company's management approves or acquiesces in an employee's exercise of supervisory control over the plaintiff, that employee will hold employer status for Title VII purposes. [FN14]

*22 2. Dissatisfaction with Sauers

Despite the clear prohibition against individual liability emerging from Sauers, the Tenth Circuit has recently expressed dissatisfaction with its own rule. In Ball v. Renner, [FN15] a different panel of the circuit [FN16] pronounced that limiting Title VII liability to actual employers "makes little sense in analytical terms," while imposing liability on supervisory agents responsible for Title VII violations is "eminently sensible as a matter of statutory structure and logical analysis." [FN17]

Ball next addressed the circuit's Title VII cases and stated that "the waters are not entirely clear" on the issue of supervisor liability, quoting dicta from Brownlee v. Lear Siegler Management Services. [FN18] Brownlee, an age discrimination case decided after Sauers, stated that "a principal's status as an employer can be attributed to its agent to make the agent statutorily liable for his own age-discriminatory conduct." [FN19] Ball then explicitly declined to resolve the "open question" of whether an individual may be liable under Title VII. [FN20]

This apparent equivocation in Ball does not change the established law in the circuit regarding an individual supervisor's liability. In Haynes v. Williams, [FN21] the Tenth Circuit rejected Ball's pronouncement that there was an open question regarding supervisor liability and expressly adhered to its former precedent, holding that "personal capacity suits against individual supervisors are inappropriate under Title VII." [FN22] Haynes disapproved Ball's interpretation of Brownlee and noted that "this circuit's rules regarding panel precedent would direct our adherence to Sauers in any event." [FN23] Thus, notwithstanding Ball, the rule against individual capacity suits in Title VII cases remains strong within the Tenth Circuit.

B. Kansas Act Against Discrimination

The Kansas Act Against Discrimination (KAAD) is the Kansas equivalent to Title VII, also prohibiting discrimination in the workplace based on race, color, religion, sex or national origin. [FN24] It defines "employer" as "any person in this state employing four or more persons and any person acting directly or indirectly for an employer . . . " [FN25] This language, while similar to Title VII's use of the term "agent," mirrors instead the Fair Labor Standards Act's (FLSA) and the Family and Medical Leave Act's (FMLA) definitions of employer. As discussed in subsections G and H of this section, courts have thus far uniformly held that the language "any person acting directly or indirectly in the interests of an employer" allows suits against individuals under the FLSA and FMLA. Neither the Kansas Supreme Court nor the Kansas Court of Appeals has construed the KAAD's definition of employer, and it is not evident what the Kansas Legislature intended, if anything, by adopting the wage and leave acts' language instead of Title VII's.

The Kansas federal district courts have consistently interpreted Title VII's and the KAAD's definitions of employer identically, apparently with little or no comment from the parties. [FN26] This stems from the Kansas Supreme Court's pronouncement that Title VII cases are "persuasive authority" in applying the KAAD. [FN27] Therefore, unless and until Kansas disagrees with the federal courts' interpretation of KAAD's definition of employer, supervisors are not personally liable for violations and may be sued in their official capacities only. Moreover, as with Title VII claims, even an official capacity lawsuit will be disallowed as duplicative if the employer itself is a named defendant. [FN28]

C. Age Discrimination in Employment Act

The Age Discrimination in Employment Act (ADEA) makes it unlawful for an employer to discriminate against its employees on the basis of age. [FN29] The act defines "employer" as "a person engaged in an industry affecting commerce who has twenty or more employees . . . The term also means (1) any agent of such a person, and (2) a state or political subdivision of a state...

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