In a 3 to 2 decision, Maine’s highest court has departed from federal precedent and concluded that individual supervisors can be liable for violations of the Maine Human Rights Act.  In Gordan v. Cummings, 2000 ME 68, decided April 19, 2000, the Court concluded that the Maine Human Rights Act prohibition against employment discrimination has broader application than Title VII, its federal counterpart, and that the plain language of the Act permits supervisor liability.

The Plaintiff in Gordan v. Cummings brought suit against the president of her former employer (and others), but not the employer, itself, alleging age and gender discrimination after she was terminated from her employment position.  The trial court granted judgment as a matter of law in favor of the supervisor, because it interpreted the Maine Human Rights Act (MHRA) to exclude individual supervisor liability.  The Plaintiff’s appeal raised an issue of first impression for Maine’s Law Court – i.e., whether the term “employer” as defined by the MHRA includes a supervisor and, therefore, allows an employee who alleges unlawful employment discrimination to sue his or her supervisor in his or her individual capacity.

Although Gordan did present a question that had never been addressed by the Law Court, the issue of individual supervisor liability under federal law has been addressed by federal courts.  In fact, a majority of the federal courts of appeal which have ruled on the issue have concluded that Title VII precludes individual liability. (Neither the First Circuit Court of Appeals, which has jurisdiction over the State of Maine, nor the U.S. Supreme Court have yet addressed the issue).   However, the Law Court declined to rely on federal precedent for purposes of determining whether an individual supervisor can be liable under the MHRA, because it concluded that the MHRA does not share an identical purpose with the federal statute, and that the federal courts of appeal misinterpreted statutory language in Title VII when excluding individual supervisor liability.
The Court asserted three basic reasons for finding a difference between the purposes of Title VII and the MHRA.  First, it concluded that the MHRA definition of “employer,” set forth at 5 M.R.S.A. §4553(4), which “includes any person in this state employing any number of employees” and “any person acting in the interest of any employer, directly or indirectly” does not shield small businesses from liability.  In contrast, Title VII, which defines “employer” to include “a person engaged in an industry affecting commerce, who has 15 or more employees…and any agent thereof” limits liability to employers with 15 or more employees. Second, the Court concluded that the MHRA definition of the term “unlawful discrimination” includes the aiding and abetting of unlawful discrimination by individuals, thereby invoking individual liability. Such language is not found in Title VII.  Finally, the Court concluded that the civil penalties provision of the MHRA permits the imposition of civil penal damages on any respondent with less than 15 employees, and thereby provides for remedies against individual supervisors.

The Court acknowledged that the phrase “any person acting in the interest of any employer” in the MHRA definition of employer defines the same person as does the phrase “any agent thereof” in the Title VII definition.  Federal courts have reasoned that this language was intended solely to impose liability on the employer for the acts of its supervisors or employees. The Maine Court rejected the reasoning of the federal courts, and relied on this language as a basis for finding individual liability under the MHRA, concluding that the broad remedial scope of the MHRA, and its objectives of protecting the public health, safety and welfare and preventing discrimination in employment would be most appropriately achieved by holding the actual wrongdoer liable for his or her discriminatory acts.
Thus, for the first time, supervisors in Maine may now be subject to liability for statutory civil penal damages for their own conduct that violates the MHRA. The amount of the damages will vary depending on the case at issue and whether the supervisor has previously been found by a court to have violated the MHRA.  However, civil penal damages of up to $10,000 can be imposed against a supervisor for one violation of the Act. 

This decision does not directly affect employers’ liability for supervisor discrimination or harassment in the workplace.  For example, it appears that employers still may be held responsible for sexual harassment by supervisors if the employee suffers tangible employment action at the hands of the supervisor, or, in the absence of such tangible employment action, if the employer has failed to take reasonable care to prevent and correct the harassment.  However, the remedies available against employers may differ from those available against individual supervisors.  Further, it is not yet clear whether and how the damages in a litigated case will be apportioned between the employer and the individual supervisor.

What remains clear, however, is that employers must continue their efforts to prevent workplace discrimination and harassment by, among other things, establishing and implementing non-discrimination and harassment programs and policies, and training both employees and supervisors about harassment and discrimination.   Prevention is the best means of minimizing the impact this decision could have upon both employers and supervisors.