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Recently a number of courts, including one in Connecticut, have been asked to decide whether an individual supervisor who commits a discriminatory act under Title VII can be held personally liable along with the employer. Although the future is unclear on this issue, a recent decision by a Connecticut federal district court, Schaffer v. Ames Department Stores, bodes well for employers and supervisors.

In Schaffer, the employee filed suit against her employer, Ames Department Stores, and two individuals, a supervisor and personnel manager, alleging sexual harassment and retaliation. The two individuals successfully moved to dismiss the action against them, arguing that Title VII does not provide for individual liability.

The Legal Debate
Under Title VII it is unlawful for an “employer” to discriminate on the basis of certain protected traits. An employer is defined as a “person” engaged in an industry, who has fifteen or more employees and “any agent” of such person. An employer is similarly defined in the Age Discrimination in Employment Act and the Americans With Disabilities Act.

Some courts have read the language “any agent” literally and have held that supervisors are agents of the employer and, therefore, can be held personally liable to victims of unlawful discrimination. However, most courts that have addressed the issue have looked beyond the literal language of federal discrimination laws and found that individual liability could not have been intended.

For example, Title VII has always been limited to employers with 15 or more employees. If Congress wanted to spare small employers from the burdens of defending discrimination lawsuits, then surely it also wanted to spare individuals. Furthermore, when Congress enacted damage caps in the Civil Rights Act of 1991 based on the size of the employer’s workforce, it similarly was seeking to protect smaller employers, and presumably individuals.

In addition, the statutory scheme which caps damages based on the size of the workforce creates a host of problems when applied to individuals. For example, do the damage caps apply to the employer and supervisors in the aggregate or can the maximum amount be collected from them separately? Should different plaintiffs be able to recover different sums from supervisors who engage in identical conduct simply because one happens to work for a larger employer? Courts like that in Schaffer have concluded that Congress would have answered questions like these if individual liability had been intended.

Using Motions to Dismiss
When a supervisor is named individually, the potential problem from a defense standpoint is that concerns about personal liability may cause the supervisor to become equivocal, evading responsibility for employment-related decisions precisely at the time the employer needs the supervisor to strongly defend them. Consequently, it is almost always in both the employer’s and supervisor’s best interests to get the individual defendants out of the case.

However, even though the recent decision in Schaffer and the majority of decisions around the country have rejected individual liability, the law in Connecticut remains uncertain. Two earlier Connecticut cases decided by other federal judges have endorsed the idea of individual liability under Title VII. In both Gregory v. Southern New England Telephone Co. and Howard v. Temple Urgent Care Center, P.C., the courts refused to dismiss individual supervisors from the case, persuaded by the rationale that supervisors are “agents” and therefore fall within the statutory definition of “employer.”

Until the Second Circuit Court of Appeals or the United States Supreme Court rule on the issue, Connecticut employers and supervisors should not assume that other Connecticut federal judges will automatically fall in line with the recent Schaffer decision. Still, that decision, together with decisions from other jurisdictions, provides a solid basis for a motion to dismiss individuals from discrimination suits whenever they are named.