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As the authoritative force in Employment and Labor Law, we, here at Miletti Law®, are thrilled to continue updating our series on federal laws that are applicable to the issues of workplace harassment, discrimination, & retaliation in New York. As Part V of this series, this blog is concerned with “Individual Liability” when it comes to federal laws that are applicable to the issues of workplace harassment, discrimination, & retaliation in New York. In this blog, we shall focus on the “Individual Liability” of 6 federal laws, including the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), Pregnancy Discrimination Act (PDA), Fair Labor Standards Act (FLSA), Age Discrimination in Employment Act (ADEA), and Equal Pay Act (EPA), Section 1981, Uniformed Services Employment and Reemployment Rights Act (USERRA), and Family and Medical Leave Act (FMLA). As we have done in the past blogs in this series, we shall look into these federal laws in this order.

Americans with Disabilities Act (ADA)

While it does not permit individual liability for a person who is the owner and sole shareholder of a corporation, Title VII has no provisions of individual liability for the actions of coworkers and supervisors. However, as it has been ruled in the past, courts may consider an individual sole proprietor to constitute an employer who may be held liable under the ADA, especially for individuals who act as sole proprietorship with 15 or more employees.

Title VII of the Civil Rights Act of 1964 (Title VII)

Again, just like the ADA, while it does not permit individual liability for a person who is the owner and sole shareholder of a corporation, Title VII has no provisions of individual liability for the actions of coworkers and supervisors. Courts have ruled that individuals who do not otherwise qualify as employers under the law are not considered employers in line with the definition of the term “employer,” as provided for  in 42 U.S.C. § 2000e(b). However, courts may consider the individual sole proprietor to constitute an employer who may be held liable under Title VII, especially for individuals who act as sole proprietorship with 15 or more employees.

Pregnancy Discrimination Act (PDA)

In most cases, the PDA generally upholds Title VII’s prohibition against individual liability for corporation’s sole shareholders, owners, coworkers, or supervisors.

Fair Labor Standards Act (FLSA)

Under the FLSA, “any person” can be held personally liable for violations of the statute’s anti-retaliation provision. Accordingly, most courts have held that the anti-retaliation provision allows an employee to pursue claims against supervisory or managerial employees who do not meet the definition of “employer” or exercise authority. However, as provide for under 29 U.S.C. § 216, individual liability is limited to a fine and/or imprisonment by the FLSA.

Age Discrimination in Employment Act (ADEA)

Similarly, while it does not permit individual liability for a person who acts as a corporation’s owner and sole shareholder, Title VII has no provisions of individual liability for the actions of coworkers and supervisors.

Equal Pay Act (EPA)

Generally, individual liability is not expressly provided for under the EPA. However, because of the statute’s broad definition of “employer,” courts have held that an employee may file suit against a person alleging EPA violations. In most cases, courts tend to find that any person who has the power to act on behalf of the company with respect to its employees or if they have control over the day-to-day business operations of the business or company. However, under the EPA, it is only when a supervisor or manager has had control over an alleged wrongful practice that individual liability will be applicable.

Section 1981

The majority courts have ruled that when they are personally involved in the discriminatory conduct, individuals may incur personal liability under Section 1981. However, showing a person’s negligence does not suffice to meet the “personal involvement” standard. In Smith v. Bray, 681 F.3d 888, 899 (7th Cir. 2012), the court ruled that a federal circuit court held that when it comes to a subordinate employee who intentionally causes a decision-maker to take adverse action against another employee in retaliation for statutorily protected activity, the cat’s paw theory can support individual liability under Section 1981.

Uniformed Services Employment and Reemployment Rights Act (USERRA)

The USERRA provides for individual and personal liability for employers, including managers and supervisors, who are found in violation of the statute. An interesting element of the USERRA is that the responsibility for compliance under the statute is shared by all employers, particularly where an employee has multiple employers.

Family and Medical Leave Act (FMLA)

Under the FMLA, any individual who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer qualifies the definition of “employer.” Accordingly, many courts have ruled that as long as they meet the definition “employer” mentioned above, persons who work for private employers can be held liable for the violations of FMLA’s anti-discrimination and anti-harassment provisions. In most cases, it has been held that the since the FMLA’s and FLSA’s definition of “employer” aligns, the “employer” is evaluated under the FMLA following the standards used to evaluate it under the FLSA. Some of the factors taken into account include whether the alleged “employer”:

  • Determined the rate and method of payment.
  • Had the power to hire and fire the employees.
  • Maintained employment records.
  • Controlled significant day-to-day functions of the business.
  • Supervised and controlled employee work schedules or conditions of employment.
  • Had an ownership interest in the company

In Part VI of this series, we shall hammer on “What Workers are Covered” under New York federal laws applicable to the issues of workplace harassment, discrimination, & retaliation.

Until then, stay tuned for more legal guidance, training, and counsel. In the interim, reach us with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.