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In 鈥淎lice in Wonderland,鈥� the Queen of Hearts once proclaimed, 鈥淲hy, sometimes I鈥檝e believed as many as six impossible things before breakfast.鈥� This appears to be the rallying cry of many plaintiffs across the country when they file administrative charges and lawsuits. They continue to name supervisors and human resources directors as individual defendants despite case law that generally holds individuals cannot be found liable under some of the most common federal employment discrimination laws: Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA).

Unfortunately, the clear language in case law supporting the dismissal of individuals has not prevented plaintiffs from bringing claims under these statutes. Being named in a lawsuit puts individuals in a terrible position of having to personally defend themselves. Even if they are able to eventually get dismissed from the complaint, they do not come out unscathed 鈥� they often get stuck paying defense costs and are usually subjected to the invasive discovery process.

This shotgun approach to employment litigation establishes that plaintiffs take the Cheshire Cat鈥檚 words to heart, in pursuit of money: 鈥淚f you don鈥檛 know where you are going, any road can take you there.鈥�

Federal and state laws

The frightening aspect of this trend is that those roads do sometimes lead plaintiffs to a place where they can recover from supervisors, managers and HR directors. Several states 鈥� including Oregon 鈥� allow plaintiffs to bring claims against individuals under the theory that they 鈥渁ided and abetted鈥� discrimination or harassment. Many states allow plaintiffs to bring claims against individuals who 鈥渞etaliate鈥� against them for engaging in protected activity. These types of laws will continue to sweep across the country as the states that have enacted them are generally at the forefront of employee rights.

At the federal level, individuals are regularly found personally liable for violations of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), Section 1981 of the Civil Rights Act, the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Employee Retirement Income Security Act (ERISA), and the Immigration Reform and Control Act (IRCA).

For instance, the Eastern District of Pennsylvania recently held that a human resources director may be individually liable for FMLA and wage violations. In聽Edelman v. Source Healthcare Analytics LLC, the court determined that there is individual liability under the statute because it defines an 鈥渆mployer鈥� to include 鈥渁ny person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.鈥� The court next found the HR director acted in the interest of the employer when she terminated the plaintiff.

The court reasoned that the HR director is subject to personal liability under the FMLA because she exerted control over the plaintiff鈥檚 specific leave and because she terminated her. Using this same reasoning, it appears that the court would have likely reached this same conclusion if it was a manager, or perhaps even a general counsel, who advised the plaintiff of her FMLA rights and subsequently terminated the plaintiff鈥檚 employment.

Another recent case out of the Eastern District of Pennsylvania denied a defendant鈥檚 request to have a race discrimination claim against the individual supervisor dismissed. In a 2018 case against a trucking company, the plaintiff made four different attempts to sue a former supervisor. The fourth time was the charm, as the court recently concluded that the plaintiff pled the bare minimum for his race discrimination claim to survive against the supervisor under Section 1981.

These cases should serve as cautionary tales to all HR directors, managers and supervisors.

Takeaways

Managers, HR directors and supervisors should heed the Queen of Hearts鈥� recommendations when considering what steps to take to protect themselves and their company: 鈥淚t takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!鈥�

To better protect yourself and the company, ensure the employee handbook accurately reflects the ever-changing laws related to protected classes and all forms of harassment. Second, schedule annual harassment and discrimination trainings with managers and non-managers. These trainings will act as a defense in the event of a discrimination or harassment lawsuit. Also, the trainings will put employees on notice that they may be personally liable for violations of both state and federal employment statutes.

Finally, there must be an emphasis, from the top down, to take responsibility for the company鈥檚 workplace culture. Remaining complacent exposes both companies and individuals to a disgruntled employee exclaiming 鈥渙ff with their heads!鈥�

Stephen Scott is an associate in the Portland office of employment law firm Fisher Phillips. He defends employers facing employment-related administrative claims and lawsuits. Contact him at 503-205-8094 or [email protected].