Some employees I manage are accused of harassment. Can my company hang me out to dry for their behavior?
Q: I’m the manager of a crew that allegedly harassed and racially discriminated against one of my employees, and I’ve just been told that our company’s attorney will protect our company, but not me as an individual. True?
A: Yes. Your employer hired an attorney to protect their company. If your interests and your employer’s align, their attorney protects you. If not, for example, if you ignored discrimination or allowed harassment, you may be left hanging “high and dry,” and will need your own attorney to protect your interests. Further, you may have individual liability.
Here’s what you need to know. In most jurisdictions, individuals cannot be found liable under Title VII of the Civil Rights Act; the Americans with Disabilities Act or the Age Discrimination in Employment Act. Managers cannot be held personally liable because the manager is not the employee’s employer.
Discrimination and harassment claims, however, are often accompanied by personal tort actions against individual managers or employees. Under the common law, all individuals have liability for their own actions that injure another. Further, managers can be named as codefendants in harassment lawsuits.
As a manager, you have a legal responsibility to make sure your employees’ workplace is free from harassment and discrimination. You, as a manager, may be innocent of harassment or discrimination yourself, but if the crew you manage was racially hostile and you didn’t take appropriate action, you can be held liable. Even if the alleged victim didn’t complain to you, you needed to be alert to the inappropriate conduct and put an end to it.
A disgruntled employee may target a manager for not doing his job of preventing harassment and discrimination and thus being part of the problem rather than part of the solution. Suing a manager as well as the employer can enhance the employee’s ability to obtain a favorable settlement, as the manager may then pressure his employer to settle the case because he has his own assets on the line.
Several important distinctions exist. The court in the landmark Janken v. G.M. Hughes Electronics lawsuit concluded that it had been the legislature’s intent to place individual supervisory employees at risk of personal liability for personal conduct constituting harassment, though not the legislature’s intent to place individual supervisory employees at risk of personal liability for discriminatory personnel management decisions, such as hiring and firing; promotion or demotion; or job, project or work station assignments. The Janken decision also eliminated a supervisory employee’s personal liability for intentional infliction of emotional distress claims arising out of personnel management decisions, even if improper motivation was alleged.
Employment attorney Elizabeth Hodes notes that managers should always factor professional reputation into their decision-making. Says Hodes, “Many anti-harassment and anti-discrimination policies call for disciplinary action against any manager who fails to enforce these policies.”
“Further, employers are sometimes willing to offer the services of the Company’s defense attorney at Company expense for efficiency (the more lawyers involved, the more expensive the case is for everyone), or to support a good employee if the Company is confident the employee did nothing wrong. Typically, the Company will look carefully at whether the individual defendant complied with Company policies before making this type of offer.”
Finally, your attorney can petition the court for a motion to dismiss the claim against you. Since determining individual liability is generally a fact-based inquiry, a judge and not a jury can make this decision and you can avoid the anguish and expense of trial.
© Dr. Lynne Curry is author of “Beating the Workplace Bully” and “Solutions” as well as Regional Director of Training and Business Consulting for The Growth Company, an Avitus Group Company. Follow her on Twitter @lynnecury10 or at http://www.bullywhisperer.com.