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Remind managers: They may be personally liable for discrimination under obscure law

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in Discrimination and Harassment,Human Resources

Under the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964, super­visors can’t be held individually liable for discrimination. However, the little-noticed Section 1981 of the Civil Rights Act of 1866 does allow individual liability for discrimination claims.

Section 1981, enacted right after the end of the Civil War, prohibits dis­crimination in contracting—including employment contracts of all kinds.

Recent case: Soliman Youssef claimed he was discriminated against at his job with the New Jersey De­part­ment of Health and Senior Serv­ices. He sued the state and his supervisor. That case was settled.

Then Youssef filed a second EEOC complaint, alleging retaliation and harassment. The EEOC agreed he had a case and said the state owed him almost $400,000 in damages. This time, the state balked and refused to settle.

Youssef sued, alleging national-origin discrimination under Section 1981. He also named his supervisor as an individual defendant. The super­visor protested, claiming that Title VII doesn’t allow personal lia­bility.

But the 3rd Circuit Court of Appeals disagreed, pointing out that Youssef wasn’t suing under Title VII, but in­­stead under Section 1981—a section the court said does provide for individual liability. (Youssef v. De­part­ment of Health and Senior Services, et al., No. 10-3628, 3rd Cir., 2011)

Final note: This decision means the boss’s personal assets may be at risk. Some employers have insurance to cover supervisor liability in cases like this.

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