Who is liable for employment discrimination?

In the event that you are discriminated against in the workplace, who can you file a claim against—the person who actually discriminated against you or your employer? While in some cases those two may be the same person, if they are different, then your employer is the one who is liable for the discriminatory conduct. In Texas, the default rule is that an employer can fire an employee at any time for any reason. This is called employment-at-will. However, certain federal and state statutes place limitations on the employment-at-will doctrine by prohibiting employment discrimination, preventing employers from basing their employment decisions—hiring, firing, promoting, and paying—on an employee belonging to a protected class.

Protected classes are listed in various statutes. For example, Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, sex, religion, or national origin. The American with Disabilities Act prohibits discrimination based on an employee’s disability. Similarly, the Age Discrimination in Employment Act protects employees over the age of 40 from discrimination.

Before these federal statutes, the federal prohibition on employment discrimination began with an Executive Order from President Franklin D. Roosevelt that prohibited discrimination in federal government contractors. However, until President Lyndon B. Johnson signed the Civil Rights Act into law in 1964, private employees had no legal recourse if they were adversely affected by discrimination in the workplace.

Liability under Title VII

The anti-discrimination provisions of Title VII apply to all employers with fifteen or more employees who are engaged in or affecting interstate commerce. This includes governmental entities at all levels as well. Further, the Act only protects employees and not independent contractors. An employee is a worker who is economically dependent on his employer and over whom the employer has the right to exercise control.

The question of who is covered by Title VII is a different question than the one of who is liable for wrongful discrimination under Title VII. Take, for example, an office worker who has a long chain of supervisors. She informs her direct supervisor that she is pregnant is summarily fired because of it. Under Title VII’s prohibition on discrimination based on sex, the employee has a claim for discrimination, but who can she sue—her direct supervisor or the company as an entity?

Under Title VII, a supervisor cannot be sued in his individual capacity. To use the example above, the office worker cannot sue her direct supervisor, but she can sue the company she worked for. In short, the employer—not the individual—is liable.

Being able to sue the employer as an entity prevents employers from implementing discriminatory practices but avoiding liability by using proxies and middle managers to take the blame.

As a practical matter being able to sue the employer for the acts of its supervisors benefits employees as well. Generally, it is the employer who will be able to adequately compensate the employee for the harm she has suffered due to discrimination rather than an individual supervisor.