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.

• Author: Jensen-Welch, Jill

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

1. 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.

2. Majority Rule: No Liability

   The rationale for the majority rule falls into seven categories.

   1. "Agent" and Respondeat Superior

      Although the Title VII definition of an "employer" includes any "agent" of the employer, the majority rule interprets this as a "simple expression of respondeat superior." While a narrow and literal interpretation of this language would imply individual liability, "a broader consideration of Title VII indicates that [such an] interpretation ... does not comport with Congress' clearly expressed intent ... [and] would lead to results that Congress could not have contemplated." (6) The no-liability majority rule is that, in the context of the statutory scheme of Title VII, the inclusion of the agent language is more accurately interpreted to impute liability to the employer for the acts of its agents, and not individual liability to supervisors.

   2. Small Employer Exemption

      Congress limited the reach of Title VII to employers with 15 or more employees. This was done to protect small entities and to avoid burdening them with the high costs of discrimination litigation, and this limitation makes it "inconceivable" that Congres also intended to impute individual liability on single persons. (7)

   3. Silence

      Quite simply, Congress failed to make explicit any intention to extend Title VII liability to individuals. The language of the statute is silent on this issue. Any intent to make individuals personally liable is also "noticeably absent" from the legislative history. Rather, both the statue and the legislative history are replete with references to "employers." (8)

   4. Compliance Requirements

      Under Title VII, employers are directed to keep specific employment records and post notices of how to file a complaint. If "agent" could substitute for "employer" in this area of the statute, then individual supervisors would be have a duty to fulfill these requirements and could bear complete liability for non-compliance. Such a result stretches the concept of individual liability too far, and would require that "employer" be defined differently in different sections of the statute. (9) There is no provision in Title VII to allow for an inconsistent definition of this key term.

   5. Remedies

      Perhaps most significant to the analysis of the no-liability majority rule is a consideration of the remedies provided by Title VII. The original remedies were limited to injunctions, affirmative relief (such as reinstatement), equitable relief and back pay for up to two years, all of which are squarely and solely within the province of the employer. "It is therefore unlikely that Congress intended to subject agents to liability for reinstatement and back pay." (10)

      In 1991, Congress amended Title VII to allow for compensatory and punitive damages, with, however, limitations based on the size of the employer's workforce. The smallest employer liable for damages must have more than 14 employees and cannot pay more than $50,000. (11) There is "no reference as to the amount of damages, if any, that would be payable by individuals. This strongly suggests that Congress did not contemplate that such damages would be assessed against individuals." (12)

   6. Individuals Are Not "Employers"

      Title VII liability is imposed only on those who meet its definition of "employer;" agents of an employer cannot themselves be employers. Individuals can be named as defendants in discrimination lawsuits, but only in their official capacities as agents of the employer and not in their personal capacity, even as the perpetrators of the discriminatory act. (13)

   7. Double Liability

      Finally, the Fifth Circuit has recognized that double liability may occur if both employers and supervisors can be sued for workplace discrimination. If a plaintiff sues both a corporation and its agent, the corporation may be effectively "held liable twice for the same act." (14)

      Table I (page 469) provides a quick-glance summary of the reasoning found persuasive by the federal courts that follow the majority rule. The numbered columns correspond to the sub-headings above.

3. Minority Rule: Liability

   The First is the only circuit yet to address the issue of whether Title VII allows individual liability against supervisors who discriminate. When it last faced the question in 1997, in Morrison v. Carleton Woolen Mills Inc., it declined to rule because of the "fragmented and undeveloped setting" of that case. (15)

   While most of the district courts in the First Circuit follow the majority rule, two judges have chosen the path less traveled--Judge Lagueux of the District of Rhode Island in Wyss v. General Dynamics Corp. (16) and Judge Gertner of the District of Massachusetts in Ruffino v. State Street Bank & Trust Co. (17) The crux of the minority rule can be found in their opinions.

   Their arguments favoring supervisory liability under Title VII include: (1) Statutory construction principles, as applied to the Title VII definition of "employer," require that "any agent of such person" include supervisory personnel. (2) The policy of greater redress for Victims is furthered by holding supervisors personally liable under Title VII. (3) Agency principles comport with holding supervisors personally liable under Title VII. (4) It is more efficient to allow the victim to directly sue the supervisor than to require the employer to Seek indemnification from the supervisor if an adverse Title VII decision is rendered. (5) Congress's failure to provide for remedies that can be easily applied to individual supervisory defendants, both pre-and post-CRA 1991, should not imply that Title VII does not put personal liability on supervisors. While each of these arguments has certain logic, each can be rather easily countered.

   1. Statutory Construction

      The beginning point of any statutory construction analysis is the plain language of the text. Applying the rule of statutory construction that the judicial inquiry can end if the statute is clear and unambiguous, the pro-liability minority views the definition of employer as clearly including any agent. The no-liability majority reads the same language and finds it to be...