Can A Supervisor Be Personally Liable for Discrimination?
October 15, 2024
By: Colin A. Walker
Most employers are well aware that discrimination based on race, religion, sex, disability, age and other “protected classes,” is illegal and that employers can be liable for significant damages, including punitive damages, and attorneys’ fees. However, can an employee sue their employer and supervisors, personally, for discrimination?
Under Title VII of the Civil Rights Act of 1964, the primary federal employment discrimination law in the United States, it is clear that individual supervisors cannot be liable for discrimination. See, e.g., Lankford v. City of Hobart, 27 F.3d 477, 480 (10th Cir. 1994). However, under the anti-discrimination laws of some states, individual supervisors could be liable.
The Colorado Anti-Discrimination Act (“CADA”) prohibits discrimination in employment, using language very similar to Title VII. However, in addition, CADA provides:
- It shall be a discriminatory or unfair employment practice:...
(e) For any person, whether or not an employer, an employment agency, a labor organization, or the employees or members thereof:...
(I) To aid, abet, incite, compel, or coerce the doing of any act defined in this section to be a discriminatory or unfair employment practice[.]
Colo. Rev. Stat. § 24-34-402. Relying on the aiding and abetting language, some employees have argued that individual supervisors can be personally liable for discrimination by the employer.
Judge Christine M. Arguello of the United States District Court for the District of Colorado addressed this issue in Judson v. Walgreens Co., 2021 WL 1207445, at *4 (D. Colo. 2021). The court applied the “the intracorporate conspiracy doctrine, which provides that ‘a corporation cannot conspire with its own agents or employees’ because the corporation and its employees ‘are members of the same collective entity’ and, therefore, ‘there are not two separate people to form a conspiracy.’” The court held that employees cannot be liable for aiding and abetting under CADA if they were working within the scope of their employment and their alleged conduct is the same as that upon which the discrimination claim is based. Id. The Court explained, “To conclude otherwise in this case would invite individual liability against supervisory employees for any allegedly discriminatory actions they took within the scope of their employment.” The court dismissed the aiding and abetting claims against the supervisors.
However, another case from the District of Colorado came to the opposite conclusion. In Morales v. L. Firm of Michael W. McDivitt, P.C., 641 F. Supp. 3d 1035, 1042 (D. Colo. 2022), Judge William J. Martinez held that liability for aiding and abetting pursuant to CADA applies to “any person, whether or not an employer, ... or the employees ... thereof.” The court reasoned that the aiding and abetting provision “draws a clear distinction between an employer and its employees; thus, the statute cannot be reasonably interpreted to consider employer and employee as a single entity.” Judge Martinez allowed the claims against the individual supervisors to proceed.
Even under Judson, individual supervisors could be liable for discrimination if they acted outside the scope of their employment. For example, if a supervisor’s actions were motivated by personal animus having nothing to do with their job duties, a court following Judson, could find that the supervisor acted outside the scope of their employment and, therefore, that the supervisor could be personally liable. However, the scope of aiding and abetting liability is much broader under Morales. Under Morales, if an individual supervisor is involved in discriminatory acts to any material extent, the supervisor could be liable.
Other states have similar aiding and abetting provisions in their anti-discrimination laws and, like the District of Colorado, have come to different conclusions about the extent of personal liability. Cf. Cowing v. Commare, 499 S.W.3d 291, 295 (Ky. Ct. App. 2016) (finding no personal liability of individual supervisors for discrimination under the Kentucky Civil Rights Act); Walters v. President & Fellows of Harvard College, 616 F. Supp. 471 (D. Mass. 1985) (finding personal liability of supervisors for discrimination under Massachusetts antidiscrimination law).
Since CADA is a Colorado state statute, decisions of the federal courts are not the final word. The Colorado Court of Appeals has appellate jurisdiction over such issues and the Colorado Supreme Court is the ultimate authority on Colorado law. Until the Colorado appellate courts rule on this issue, barring a change in the law by the Colorado Legislature (which is unlikely), the law on personal liability for supervisors for discrimination will be uncertain. Employers in states with laws like CADA can expect to see a growing number of lawsuits naming individual supervisors as defendants, seeking to hold supervisors personally liable for damages for discrimination.