There are all sorts of reasons why an employee would want to avoid discrimination or harassment of co-workers or direct reports, but the one which resonates the most is the potential that the employee can be found individually liable for his or her actions. But as Title VII caselaw mounted, it became clear that the threat of individual liability under that law was empty.
Title VII is defined to include “agents” of an employer as an employer itself, and it was that statutory ambiguity which led individual managers to believe that they were potentially liable for discrimination or harassment under the law. But in the 1990’s, nearly every court to consider the issue found that Title VII did not create individual liability. As of now, every federal appellate court to consider the issue has found that there is no individual liability for discrimination or harassment under Title VII (only the First Circuit has not reached that holding).
State courts interpreting state laws generally reached the same holdings. In California, for example, the courts found that individual employees – whether managers or otherwise – are not liable for discrimination or retaliation under its discrimination law. But, California departed on the issue of harassment and found that unlike discrimination and retaliation, which involves conduct that is “necessary for performance of a supervisory job,” harassment does not. As a result, individuals in California can be found liable for harassment under certain circumstances. Courts in New Jersey and Massachusetts have also opened the door to individual liability for harassment claims.
Aside from those few states, the trend is certainly against individual liability under discrimination statutes. And certainly under Title VII, given the consensus of the appellate courts, the law is not likely to change nor should it make its way to the U.S. Supreme Court for review.