By Ralph R. Smith, 3rd, Esq.
One of the most frequent questions asked of labor and employment lawyers by clients is whether there is any chance that a suing employee could attempt to hold an employer’s manager, supervisor, or other official personally liable under any federal anti-discrimination laws. In most cases, the answer will be no, and the United States Court of Appeals For the Third Circuit recently reaffirmed this status in deciding a case involving the Age Discrimination in Employment Act (“ADEA”), a law that bars workplace discrimination against any persons who are 40 years old or older. The ADEA’s anti-discrimination requirements apply to both public and private employers.
In Muhammad v. Sills Cummis, 2015 U.S. App. LEXIS 12091 (3d Cir. 2015), the plaintiff sued his former law firm employer alleging age discrimination arising from his reduction in force along with two other younger employees who likewise worked in the firm’s Operations Department. Along with suing the law firm, plaintiff also named as defendants two firm officials: its Director of Office Operations and its Chief Human Resources Officer. The trial court dismissed these two individuals from the case, holding that the ADEA does not provide for individual liability. In upholding this decision, the Third Circuit likewise reiterated that individual liability is not available under the ADEA against co-employees because by the law’s express terms only employers can be held liable for age discrimination under the ADEA. So, if acts of discrimination are alleged against co-workers, it ultimately is the employer who is charged with those acts, particularly when such acts occur during the course and scope of that worker’s employment, and thus it is the employer who becomes liable for them under the ADEA.
While most federal employment laws like the ADEA do not provide for individual liability of officers, managers and other co-workers, there are exceptions to this rule. For example, individual liability can be imposed against persons who retaliate or interfere with an employee’s ability to exercise protected leave rights under the Family and Medical Leave Act (“FMLA”). Moreover, depending upon where you conduct your business or operations, state law may similarly provide some form of individual liability for workplace wrongdoing. In fact, in a place like New Jersey, many workplace laws allow for the possibility of individual liability. Some examples: under the New Jersey Law Against Discrimination (“LAD”), the state’s comprehensive anti-discrimination law, any person who aids and abets a violation of that law can be held individually liable. Similarly, the state’s anti-retaliation whistleblower law likewise provides for individual liability, and wage and hour laws also hold persons involved in the administration of a payroll program liable for nonpayment of required wages. Such laws should themselves provide an effective incentive to an employer’s managers and representatives to ensure workplace compliance with such anti-discrimination requirements. Ultimately, though, it is the responsibility of the employer to guarantee that there will be continuing compliance with all workplace legal requirements.
If you are unclear about how the requirements of the multitude of laws that affect the workplace apply to your operations and impact your employees, now is a good time with the end of the calendar year quickly approaching to reeducate yourself and make a renewed commitment to meeting compliance goals for the upcoming New Year.