February 1999

Workplace Labor Update - Supervisor Not Individually Liable Under Title VII – February 1999

3 min

In the recent case of Lissau v. Southern Food Service, Inc., 159 F.3d 177 (4th Cir. 1998), the federal appeals court with jurisdiction over Maryland, Virginia, West Virginia and the Carolinas ruled that supervisors may not be held individually liable for violations of Title VII of the Civil Rights Act of 1964.

The plaintiff, Cynthia Lissau, filed a Title VII lawsuit against her former employer and supervisor alleging that both defendants were liable for a sexually hostile work environment. Specifically, Lissau alleged that her supervisor spoke and acted inappropriately -- making provocative statements about her appearance, implying a sexual interest in her, and behaving similarly inappropriately toward other female employees. In addition, the supervisor allegedly touched Lissau on several occasions, including on her thigh.

The District Court granted judgment in favor of both Southern and the supervisor prior to a trial on the merits. The Court held that Lissau's supervisor was entitled to judgment because supervisors are not individually liable under Title VII. The Court also held that the case against Southern should not go to trial because it did not have notice of the supervisor's behavior. Lissau then appealed from this decision. On appeal, the Fourth Circuit held that Title VII's statutory language and remedial scheme lead to the conclusion that supervisors may not be held individually liable for Title VII violations. Although the Court's 1994 decision of Birkbeck v. Marvel Lighting Corp., left open the potentiality of individual supervisor liability in certain limited circumstances, the Lissau Court foreclosed this possibility.

Title VII defines “employer” to include “any agent” of an employer. However, the Court held that the agent language represented an “unremarkable expression of respondeat superior” which simply allows that actions taken by an employer's agent may create liability for the employer. Moreover, as Title VII specifically exempts small employers from liability, the Court stated that it would be “incongruous” to hold that Title VII does not apply to the owner of a five-person company but does apply to a person who supervises an identical number of employees in a larger company. Given this potential conflict, the Court found that individual liability would not lie against supervisor.

The Court further bolstered its conclusion by reference to Title VII's remedial scheme. Specifically, the Court noted that remedies under Title VII originally were limited to back pay and equitable relief, which were obtainable only from an employer, not a mere individual. Although the 1991 amendments to the statute added compensatory and punitive damages to the list of available remedies, Title VII's sliding scale of liability is dependent upon the size of the employer and does not provide an amount in cases where the plaintiff seeks to hold an individual supervisor liable. The Court found that this linkage between the size of an employer and the amount of available relief clearly indicated a congressional intent to limit plaintiffs' remedies to suits against employers.

With this holding, the Fourth Circuit has joined the view held by ten other federal circuits and settled a sharply contested issue with clear implications for employers and their management employees.