Employees May Be Held Personally Liable For Retaliation

In an interesting case, the 7th circuit court of appeals determined that an employee may be held personally liable where their actions lead an employer to retaliate against employee.

In Smith v. Bray, a black employee was fired for allegedly taking unapproved leave. Smith had fired race discrimination and retaliation charges against the company, his former supervisor and the human resources manager.

A retaliation claim may exist in a number of situations, and doesn’t mean simply that you were discharged for making a complaint. It means almost any negative action by your employer against you (or even against a family member or friend) in response to your complaint about discrimination, or for participating as a witness in someone else’s discrimination case. The U.S. Supreme Court has recently defined retaliation quite broadly, to include any conduct by an employer that would tend to deter reasonable people from pursuing their rights. So, if in response to your complaint about race discrimination or sexual harassment, your employer moves you to a less favorable shift, or transfers you to a different location further from your home, you may have a good claim for retaliation.

But what if the basis of the retaliation are comments by supervisors or managers, or others that don’t have the power to make employment decisions, and these comments or actions lead to the negative action?

In Smith, the court determined that in these situations, an individual may be found individually liable if they have caused the employer to retaliate against a fellow employee engaged in protected activity.

This means where someone such as a human resources manager who plays a key role in work place controversies and may encourage an employer to fire another employee who, for example, complains of race or sex discrimination may be held personally responsible.

This finding expands the legal doctrine called the “cat’s paw theory.” Under the cat’s paw theory, supervisors who have “discriminatory intentions” may be held liable even if they’re not directly responsible for firing an employee. For example, if they make negative comments in their personnel file that lead to an adverse action, they may be held personally liable. This applies to employees that can’t make the ultimate decision to fire, but have influenced the decision.

As stated by the court “It also makes sense as a matter of basic fairness: why should the ‘hapless cat’ (or at least his employer) get burned but not the malicious ‘monkey’? … The cat’s paw theory can support individual liability under § 1981 for a subordinate employee who intentionally causes a decision-maker to take adverse action against another employee in retaliation for statutorily protected activity.”

For more information, or if you believe you have suffered work place retaliation as the result of complaining about discrimination, or participating in someone else’s case, please contact the top Atlanta employment discrimination law firm of Buckley Bala Wilson Mew LLP for an immediate case evaluation.