Imagine you work in a health clinic. The health clinic’s owner, who is also your supervisor—against your wishes—hugs you; rubs your back, waist, breast and other inappropriate areas; and attempts to kiss you. You rebuff him and explain that you are happily married and plan to remain so. He fires you.
In most states a company would be liable for the tort of wrongful discharge for this conduct. But the question of whether the supervisor is also liable has been making its way through the courts.
Supervisors and managers should take heed that the liability landscape is changing and trending toward individual liability in various types of retaliation cases. HR professionals need to inform supervisors and managers about this trend.
One example is from the Supreme Court of Virginia—one of the country’s most conservative courts—which held, in November 2012, that a supervisor is subject to tort liability in wrongful-discharge actions.
In VanBuren v. Grubb, the Supreme Court of Virginia joined Iowa, New Jersey, Pennsylvania and West Virginia in recognizing the possibility of filing suit against an individual supervisor in addition to the worker’s employer. These states are at the crest of the wave explicitly authorizing such claims. Other states—such as Arizona, Arkansas, Hawaii, Missouri, Montana, North Dakota, Ohio, South Carolina, South Dakota and Washington—have implicitly approved wrongful-discharge claims against individuals.
Individual liability stretches beyond the wrongful-discharge context; supervisors need to tread carefully in other areas, as well.
Claims Under Federal Law
Although it is not news that individual supervisors can be held individually liable for discrimination and retaliation claims based on race or color under Section 1981, what’s recent is the extension of that liability to other employees. In May 2012 the 7th U.S. Circuit Court of Appeals, which hears appeals from federal courts in Wisconsin, Illinois, and Indiana, held that individuals could be held liable for Section 1981 retaliation claims when an employer relies on an individual’s unlawfully motivated reasons for taking an adverse action. That is, “an individual can be liable under § 1981 for retaliatory conduct that would expose her employer to liability under Title VII or § 1981.”
In another type of federal retaliation suit, a jury awarded a researcher, Weihua Huang, more than $800,000 in a claim against a public university and individuals who worked for the university. While the school was dismissed from the case, Huang’s supervisors were not. The claim was based on Huang’s disclosures to management that implicated the False Claims Act, which contains an anti-retaliation provision protecting such disclosures. After Huang reported improprieties by the university and his supervisors, he received notice that his employment contract would not be renewed.
Federal courts have also interpreted the definition of “employer” under the Fair Labor Standards Act and the Family and Medical Leave Act to include, in certain instances, supervisors involved in the retaliatory discharge of an employee exercising his or her rights under the statutes.
These trends highlight the importance of supervisors ensuring they are not retaliating against workers who submit concerns on various grounds, including compliance and illicit actions.
What Steps Should HR Take?
So what should HR professionals and decision-makers do? There should be a complete review of the reasons for any employee’s termination. The purpose is to undercover any potential retaliatory or discriminatory motive by the supervisor or a complaining colleague. Policies to avoid unlawful discharges should be implemented, adhered to, and enforced uniformly and consistently. Supervisors should be trained not to retaliate against employees and informed that the company’s goal to avoid liability aligns with the supervisors’ goal to avoid individual liability. Documentation of all the above should be retained and made easily accessible. Finally, companies may wish to re-examine their indemnification policies for all levels of supervisors to determine whether indemnification for retaliatory actions is desirable.
Those who fail to follow this advice act at their own peril and open themselves up to liability.
R. Scott Oswald is a trial lawyer who handles employment and whistle-blower cases nationwide. He is managing principal of The Employment Law Group P.C. in Washington, D.C.