HR Management & Compliance

Personal Liability Of Supervisors: New Decision Increases Your Risks

Many managers are justifiably concerned about the possibility of being on the hook personally for damages when an employee sues for discrimination or harassment. In recent years, several courts have said that managers can be held responsible if they sexually harass someone, but not for acts of race, sex or disability bias.

But there’s new cause for concern.

A federal court ruled recently that managers and supervisors can be personally sued for damages for retaliating against disabled workers.

Employee Complains About Discrimination And Retaliation

The case involved David Ostrach, a graduate student employed by the School of Veterinary Medicine, at the University of California Davis. Ostrach suffered from a condition that interfered with his manual dexterity. When UC allegedly tried to remove him from his position, he filed an internal grievance claiming he was being discriminated against because of, among other things, his disability. UC then fired him.

Join us this fall in San Francisco for the California Employment Law Update conference, a 3-day event that will teach you everything you need to know about new laws and regulations, and your compliance obligations, for the year ahead—it’s one-stop shopping at its best.

Personal Liability For Retaliating

Ostrach sued UC and his supervisors individually under the Americans with Disabilities Act (ADA). He charged he was terminated in retaliation for bringing an internal grievance for disability discrimination. The supervisors tried to get the case against them dismissed, arguing they couldn’t be personally liable for damages under the ADA.

But the court refused to let the supervisors out of the lawsuit. It ruled that, although individual supervisors and managers cannot be held responsible for disability discrimination, they can be sued for damages, including punitives, for violating the ADA’s anti-retaliation provisions.1 Ostrach’s case can now proceed to trial, where he will have to prove that his superiors actually did retaliate against him.

Warn Your Supervisors

Because of the continuing risks in this area, supervisors should be cautioned not to retaliate against employees who complain about possible discrimination or other illegal practices. Actions that could be considered retaliatory include discipline, demotion or termination-as well as even threatening such consequences-after an employee has made a complaint or filed a grievance about possible unlawful activity.

Beware Of A New Tactic

What’s more, it’s important to be on your guard against a dangerous new tactic. Some attorneys have begun advising employees who think they are about to be terminated to complain that their employer is engaging in unlawful conduct-whether or not they have a good basis for believing it to be true. Then if you fire the person, they will charge illegal retaliation.

The fact that the complaint may have no merit is irrelevant. What’s important is that it will look like you illegally retaliated after the complaint was made, allowing the worker to sue when grounds wouldn’t otherwise exist.

To protect yourself, always promptly investigate and respond appropriately to employees’ complaints and have plenty of documentation to show that your disciplinary and termination decisions are based on valid performance considerations.