South Carolina Lawyer
Vol. 13, No. 3, Pg. 36.
Supervisor liability for sexual harassment under Title VII in the 4th Circuit: Continued uncertainty after Lissau v. Southern Food Service, Inc
36Supervisor liability for sexual harassment under Title VII in the 4th Circuit: Continued uncertainty after Lissau v. Southern Food Service, Inc.By Daniel F. Blanchard IIIThe decisions of the 4th Circuit have a history of engendering confusion and misunderstanding as to whether supervisory employees can be held individually liable under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., the federal statute prohibiting employment discrimination on the basis of race, color, gender, religion or national origin. See Bryant v. Locklear, 947 F. Supp. 915, 917 (E.D.N.C. 1996) (lamenting that 4th Circuit precedents had caused confusion among the district courts as to individual liability under Title VII); Turner v. Randolph County, 912 F. Supp. 182, 184-86 (M.D.N.C. 1995) (noting the difficulty in reconciling the discrepancy in 4th Circuit precedent governing supervisory liability). An argument still exists that the 4th Circuit has not definitively resolved the issue of supervisor liability for sexual harassment under Title VII even in the wake of
Lissau v. Southern Food Serv., Inc., 159 F.3d 177 (4th Cir. 1998). In Lissau, a three-member panel of the 4th Circuit comprised of two circuit judges (Wilkinson and Michael) and one district judge sitting by designation held that supervisory employees are not liable in their individual capacities under Title VII despite personally participating in the sexual harassment. The primary underpinning for the Lissau panel's holding was the 4th Circuit's decision in Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir.), cert. denied, 513 U.S. 1058, 115 S.Ct. 666 (1994), which involved the issue of individual liability under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq.
The present lack of conclusiveness as to supervisor liability under Title VII in the sexual harassment context stems from the Lissau panel's unexplained failure to deal with the 4th Circuit's prior holding in Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989), aff'd in pertinent part, vacated inother part, 900 F.2d 27 (4th Cir. 1990) (en banc), and its curious disregard of a crucial footnote to the Birkbeck opinion. In Paroline, a panel comprised of three circuit judges (Wilkinson, Ervin and Murnaghan) unanimously rejected a per se rule against individual liability under Title VII and, instead, concluded that an individual can be held personally liable under Title VII "if he or she serves in a supervisory position and exercises significant control over the plaintiff's hiring, firing or conditions of employment." Paroline was employed as a word processor at Unisys Corporation. She asserted sexual harassment claims under Title VII against Unisys and a Unisys employee (Moore) based on her claim that Moore made improper sexual advances toward her on and off the job. An issue raised at the summary judgment stage was whether Moore qualified as Paroline's employer within the embrace of Title VII.
38The Paroline majority opinion, which was authored by Judge Murnaghan and joined by Judge Ervin, discussed this issue as follows:
An "employer" [under Title VII] includes "a person engaged in an industry affecting commerce who has fifteen or more employees . . . and any agent of such a person . . ." 42 U.S.C. ? 2000e(b) (emphasis added). Unisys clearly falls within the statutory definition of "employer." However, the parties disagree as to whether Moore exercised sufficient supervisory authority over...