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Want to get bosses’ attention on bias problems? Remind them they can be held personally liable

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in Compensation and Benefits,HR Management,Human Resources,Leaders & Managers,Management Training

Here’s a powerful reason for managers and supervisors in New Jersey to understand the ins and outs of discrimination and labor laws. If they commit a discriminatory act, they could be personally liable.

For example, under the New Jersey Law Against Discrimination (NJLAD), “employers” are prohibited from engaging in unlawful discrimination, including discrimination on the basis of race or national origin. The law defines “employer” as “one or more individuals, partnerships, associations, organizations, labor organizations, corporations, legal representatives, trustees, trustees in bankruptcy, receivers and fiduciaries.”

But the NJLAD also provides liability for a “person,” whether that person is an employer or not, if he or she aids or abets, incites, compels or coerces a violation of NJLAD.

In other words, those who discriminate can’t hide behind their company or organization if they “aid or abet” a violation of the NJLAD.

Recent case: Wilson and Cesar Montalvo are U.S. citizens from Puerto Rico. The two were recruited to work as seasonal farm workers for Larchmont Farms in the South Jersey town of Elmer, where they were going to harvest peaches, nectarines and apples. The farm paid for their trip from Puerto Rico, provided housing and paid them minimum wage.

The men complained that Charles Haines, the farm’s owner, also imported foreign workers through a federal temporary worker program. Those workers were paid several dollars more per hour that the Montalvos.

The Montalvos sued, alleging they were being discriminated against because of their national origin—in essence, because they were U.S. citizens and not foreign nationals. They also alleged they had been moved to less desirable housing as soon as the other workers arrived.

But they didn’t sue just the corporate farm—they also sued Haines, whom they alleged had taken a direct part in the pay and housing decisions.

Haines said he couldn’t be personally liable, but the court disagreed. It said that under NJLAD (and several other federal and state laws), an individual who participates in discrimination can be held personally responsible alongside the organization or company he is associated with. The court also said that disparate treatment of U.S. citizens and laborers brought into the country under guest programs could indeed be discriminatory, based upon national origin.

The case now goes to trial. (Montalvo, et al., v. Larchmont Farms and Haines, No. 06-2704, DC NJ, 2009)

Advice: Include the concept of personal liability in your management training programs. Use it to encourage supervisors to consult with HR before making any decisions that could have a discriminatory impact.

Final note:
One of the Montalvos also alleged that he had been intentionally exposed to toxic pesticides. He sued both the corporation and Haines, accusing him of personal involvement in the exposure.

The owner said that if he were liable at all, it would be as the employer because pesticide use was part of the job. But the court said that if Montalvo could prove that he really was exposed to toxic pesticides and that exposure was done intentionally by the owner, he could sue both the corporation and the owner personally.

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