When I was in high school, the foreign language offerings were French and Spanish. That was a long, long time ago, in a galaxy far, far away.

Today, the best I can do in Spanish is ask your name, what time it is, and how to get to a bathroom. Some things are more important to remember than others.

While ever so slightly more recent, and closer to my current galaxy, law school tried to teach me Latin words and phrases. If it tried to teach me the entire language, I fear I would have fared no better than I did with Spanish.

But some Latin phrases had real sticking power. Respondeat superior was one.

The translation is, “let the master answer.” As applied to your business or job, it means that the employer is liable for the wrongful acts of its employees when those acts are in the scope of their authority.

In most cases employers can’t avoid answering for the discriminatory actions of supervisors and managers

Your business no doubt has policies prohibiting discrimination against applicants and employees based on their race, sex, national origin, disability, and a list of other protected characteristics that grows longer with each passing year. If it doesn’t, I can send you my business card because you’re going to need it.

With a few exceptions, most employment discrimination statutes do not require proof of mens rea (“guilty mind”) to establish a claim against an employer.

One of the earliest applications of this concept is Anderson v. Methodist Evangelical Hospital. Even though it was decided more than 50 years ago, Anderson still gets approving shout outs from the U.S. Supreme Court.

Anderson

In Anderson, the plaintiff was discharged by her front-line supervisor, and she sued the former employer for race discrimination. She won, the employer appealed, and the U.S. Court of Appeals for the Sixth Circuit began by quoting some pro-employer words from the lower court decision:

It should, at this point, be expressed that we do not find any facts which reflect that the defendant corporation, or its directors, or its administrators possessed any willful plan or desire to resist social justice or wish to discriminate or have any person in its employ discriminated against. In fact, the Board of Directors and the high management of the hospital have an outstanding record in regard to fair and impartial treatment of the races.

Sounds like a pretty good group of people, with their hearts and minds in the right place. But the Sixth Circuit went on to say this:

[Despite these good efforts,] where a discharge by a person in authority at a lower level of management is racially motivated, Title VII provides the aggrieved employee with a remedy.

In other words, Hail Caesar, let the master answer, and let the hospital get out its check book and write one to Ms. Anderson.

A manager may be a rogue, or even worse, but he or she is your rogue

When a company hires managers and supervisors, it invests them with certain duties and responsibilities and entrusts them to act on matters within the scope of their authority.

The scope of that authority typically includes the ability to hire, fire, make promotion decisions, administer disciplinary action, or make recommendations that are given particular weight by their superiors.

In fact, if salaried managers or supervisors don’t have this authority, their status as being exempt from overtime could be subject to attack.

With limited exceptions, mostly related to liability for hostile environment harassment claims, businesses live vicariously through their managers and supervisors. If they do good things, the business does well. If they do bad things, the business doesn’t do so well.

Checks and balances

For a variety of legal and practical reasons, most businesses cannot entrust all employment decisions to a handful of people. Instead, that authority is usually distributed to front-line supervisors and succeeding levels of management above them.

The existence of a company policy prohibiting discrimination may come in handy when responding to a claim for punitive damages. But, as Anderson teaches, it amounts to bupkis (not Latin, but comes from bobkes, which is Yiddish for “nothing”) when the employer is trying to avoid liability for the underlying wrongful act.

The best way to avoid respondeat superior liability for the adverse employment actions of your managers and supervisors is to make sure that they are not infected with discriminatory intent, but rather based on truthful, legitimate, and non-discriminatory reasons. Here are some things you can do to accomplish that objective:

• Make sure employees, managers, and supervisors have acknowledged receiving and understanding the rules by which their performance will be evaluated.

• Document employee failures to comply with those rules.

• Provide employees with a process for seeking review of adverse actions.

• Require submission of requests to terminate, demote, or transfer employees that include explanations of the reasons for those actions, along with the supporting documentation.

• Have Human Resources, or succeeding levels of management, conduct an independent investigation of the requested action and the support for it. No rubber stamps. If it’s justified, approve it. If it doesn’t pass the smell test, dig deeper.

Although supervisors and managers need to have the authority to make employment decisions or recommend such action, their authority does not have to be (and should not be) unbridled or unchecked.

If you don’t check to make sure the decisions of your supervisors and managers are ex fide bona (“in accord with good faith”), you may wind up paying your former employee ad quod damnun (“according to the harm or damage suffered”). And then some.