[*PG421]INDIVIDUAL LIABILITY OF SUPERVISORS FOR SEXUAL HARASSMENT UNDER TITLE VII: COURTS’ RELIANCE ON THE RULES OF STATUTORY CONSTRUCTION

Abstract:  The United States Supreme Court has not considered the issue of individual liability under Title VII for workplace sexual harassment. There is, however, almost complete consensus on this issue among the federal courts. Only the United States Circuit Court of Appeals for the First Circuit has refused explicitly to rule on the issue. Several district courts in the First Circuit allow supervisors to be sued in their individual capacities under Title VII. Other district courts, however, have rejected such lawsuits. This Note reviews the case law addressing the issue of individual liability of supervisors under Title VII, and concludes that Title VII imposes liability only on employers. Simply stated, supervisors cannot be sued as individuals under Title VII.

Introduction

Title VII of the Civil Rights Act of 1964 (“Title VII”) is a federal statute that protects employees from sexual harassment in the workplace.1 Specifically, Title VII prohibits workplace practices that discriminate because of sex for no bona fide job-related reason.2 For example, under Title VII an employer is subject to damages and equitable remedies for discriminatory hiring and promotion practices [*PG422]and sex-related conduct that has a sufficiently adverse affect on the employee’s work environment.3

If the court finds that the employer has violated Title VII, the court may order the employer to pay back-pay, compensatory damages and punitive damages to the employee.4 The court may also order appropriate injunctive relief.5 For example, the court can enjoin the employer from continuing discriminatory workplace practices such as maintaining a formal policy of treating women differently than men for no bona fide reason based upon the requirements of the particular job.6

Despite Title VII’s mandate against sexual harassment in the workplace, there remains some disagreement among federal courts—especially among federal district courts within the First Circuit—as to whether supervisors may be sued in their individual capacities for sexual harassment.7 This controversy results from the statute’s argua[*PG423]bly ambiguous definition of the term “employer.”8 Although Title VII’s language addresses explicitly an employer’s conduct, it defines the term employer to include employers with certain characteristics “and any agent of such a person . . . .”9 It is this “and any agent clause” that has caused courts to disagree about whether supervisors can be sued in their individual capacities.10 Some courts interpret the “and any agent” as unambiguously providing for individual liability of supervisors.11 Supervisors are common law agents of the employer after all, they reason.12 The majority of courts, however, interpret the “and any agent” clause as an expression of Congress’s intent to incorporate the concept of respondeat superior within Title VII.13 In other words, the clause ensures that employers will be held liable for the conduct of all of their agents, including supervisors.14

Because Title VII is a statute, perhaps it is unsurprising that courts support their construction of the “and any agent” clause using various rules of statutory construction.15 Simply stated, the rules of statutory construction are a commonly accepted technical framework for determining what the language of a statute means in any given [*PG424]situation.16 “If the language of a statute is plain and unambiguous it must be given effect” is one rule, for example.17

What is perhaps most interesting about the controversy over individual liability of supervisors for sexual harassment is the extent to which courts rely on the rules of statutory construction to support their decisions.18 This reliance has brought to light again the rules’ primary limitation.19 For every rule, there is an equally valid but opposing rule which, when applied, will yield an opposite conclusion.20 “Although plain and unambiguous, statutory language will not be given effect when a literal interpretation would lead to absurd or mischievous consequences or thwart the statute’s manifest purpose” is the opposing rule to the rule last mentioned.21 Although application of opposing rules will lead to opposite conclusions, both conclusions are “correct” in that they follow logically from applying a rule of statutory construction.22

The United States Supreme Court has not considered the issue of individual liability under Title VII.23 There is, however, almost complete consensus on this issue among the federal circuit courts of appeal.24 Currently, the United States Courts of Appeal for the Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh and District of Columbia Circuits have rejected individual liability for supervisors.25 Furthermore, the Court of Appeals for the Eighth Circuit has rejected individual liability for supervisors under a state human rights [*PG425]statute analogous to Title VII, even though the court has yet to decide the issue definitively under Title VII.26 Indeed, the First Circuit Court of Appeals is the only federal appeals court that has refused to rule explicitly on the issue.27 Federal district courts within the First Circuit have disagreed on the question of individual liability for supervisors.28 Several district courts in the First Circuit allow supervisors to be sued in their individual capacities under Title VII.29 Other courts, however, have rejected such lawsuits.30

This Note reviews the case law addressing the issue of individual liability of supervisors under Title VII and emphasizes the current split among federal district courts in the First Circuit.31 Like the majority of courts, I conclude that Title VII imposes liability only on employers—people or entities employing fifteen or more employees in an industry affecting commerce.32 Simply stated, supervisors cannot be sued as individuals under Title VII.33 In addition, my purpose in analyzing the current state of the law is to alert observers and practitioners to courts’ reliance on the rules of statutory construction and which rules are likely to be relied on by a court addressing this issue.34 Part I provides background for the reader concerning the history of sexual harassment.35 Part II reviews the current state of the law concerning individual liability of supervisors under Title VII in the federal courts—especially in the First Circuit.36 In Part II, I also discuss the courts’ reliance on the rules of statutory construction and explain that the controversy brings to light again the primary limitation of the [*PG426]rules.37 Part III argues that the better reasoned view is that, under Title VII, there is no individual liability for supervisors and that a plaintiff-employee’s sole remedy is against his or her employer.38 Application of the rules of statutory construction provides more than one “right” answer.39 Moreover, the legislative history concerning sexual harassment in general and Title VII’s “and any agent clause,” in particular, is completely lacking.40 As a result, support for my conclusion is based largely on a common sense evaluation of the current problem of sexual harassment in the workplace, the resources available to combat it, and the language and structure of Title VII’s remedial framework.41 I conclude that expanding Title VII’s reach to include liability for individual supervisors is unwarranted.42

I.  A Brief Summary of Sexual Harassment Under Title VII

Title VII provides that it is unlawful for employers to fail to hire or fire anyone because of their sex.43 In addition, Title VII makes it ille[*PG427]gal for an employer to discriminate against anyone with regard to compensation, terms, conditions or privileges because of his or her sex.44 The term employer is defined in Title VII as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person . . . .”45 Early on, courts held that Title VII’s prohibition against sex discrimination encompassed only disparate treatment such as an employer’s refusal to hire or promote employees into positions for which they were otherwise qualified because of their sex.46 More recently, however, federal courts have interpreted Title VII to prohibit sexual harassment in the workplace.47

Generally, sexual harassment may be defined as a type of employment discrimination that includes unwelcome sexual advances, requests for sex and other sexual conduct prohibited by federal or state law.48 In its decisions, the United States Supreme Court has recognized two categories of sexual harassment: quid pro quo and hostile work environment.49 Quid pro quo sexual harassment occurs when a job applicant or employee suffers a tangible adverse employment action for refusing the sexual advances of her employer or supervisor.50 A tangible adverse employment action includes not only decisions that affect the hiring and promotion of employees, but also the reassignment of employees to less desirable tasks.51 In contrast, hostile work environment sexual harassment occurs when employees are subjected to abusive behavior in the workplace “because of” their sex.52 For a hostile work environment to exist, the harassment must be [*PG428]sufficiently severe or pervasive to alter the terms and conditions of employment.53

To prevail in a quid pro quo sexual harassment case, plaintiffs must demonstrate that they suffered tangible adverse employment actions that result from their rejection of sexual advances made by their employer or the employer’s agent.54 When an agent of the employer, such as a supervisor, inflicts a tangible adverse employment action on an employee for rejecting a sexual advance, courts have determined that the employer is vicariously liable for the supervisor’s actions.55 In other words, the acts of the supervisor are imputed to the employer and legal responsibility for the supervisor’s actions rests with the employer.56

In contrast, hostile work environment claims involve no tangible adverse employment action.57 In a hostile work environment case, plaintiffs can prevail by proving that they were subjected to harassing conduct that altered the terms and conditions of their employment.58 To be actionable, the conduct must be unwelcome, sufficiently severe or pervasive to alter a term or condition of employment and “because of” sex.59 Whether conduct is unwelcome is determined by subjective factors.60 For example, an employee’s voluntary participation or acceptance of offensive conduct does not mean that the conduct was welcome; however, evidence that the employee invited and joined in the conduct probably would bar an employee’s claim of hostile work environment.61 Further, whether harassment is sufficiently severe or pervasive is determined by looking at the totality of the circumstances.62 The totality of the circumstances includes factors such as the frequency of the discriminatory conduct, its severity, whether the conduct is physically threatening or humiliating or a mere offensive utterance and whether the conduct unreasonably interferes with an employee’s work performance.63 Finally, the discriminating conduct [*PG429]must be “because of” sex.64 Courts have found gender-specific harassment, unwelcome conduct of a sexual nature and conduct motivated by sexual desire to be “because of” sex.65

In 1986, the Supreme Court first recognized hostile work environment sexual harassment in Meritor Savings Bank v. Vinson.66 In Meritor, the Supreme Court held that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex created a hostile or abusive work environment.67

The Court rejected explicitly the contention that, to prevail, plaintiffs must show a tangible economic effect on their employment condition.68 The Court reasoned that the language of Title VII is not limited to “economic” or “tangible” discrimination.69 Rather, the phrase “terms, conditions, or privileges of employment” in Title VII demonstrates that Congress’s purpose in enacting Title VII was to prohibit a broad spectrum of workplace disparate treatment based on sex.70 Thus, severe or pervasive sexual harassment could affect the terms and conditions of a person’s employment just as severely as other forms of discrimination.71

The Supreme Court in Meritor did not address what conduct is sufficiently “severe” or “pervasive” to transform the workplace into a hostile work environment.72 In 1993, in Harris v. Forklift Systems, Inc., however, the Supreme Court held that Title VII is violated when the workplace is permeated by discriminatory intimidation, ridicule and [*PG430]insult that is sufficiently severe or pervasive to alter the conditions of a victim’s employment and create an abusive working environment.73

The Court determined that whether a work environment is “hostile” or “abusive” depends upon a number of factors including the frequency of the discriminatory conduct, its severity, whether the conduct is physically threatening or humiliating and whether the conduct unreasonably interferes with an employee’s work performance.74 Furthermore, the Court determined that whether the harassment seriously affected the worker’s psychological well-being or had led her to suffer injury was not necessary to a finding of actionable sexual harassment.75

Neither Meritor nor Harris addressed definitively the question as to what circumstances the employer is liable for its employees’ discriminatory conduct.76 In 1986, in Faragher v. City of Boca Raton, the Supreme Court addressed directly the issue of employer liability for the actions of its employees.77 In Faragher, the Supreme Court held that an employer is vicariously liable for actionable discrimination caused by a supervisor with immediate or successively higher authority over the employee-victim.78 Further, the Court held that the employer’s liability in a hostile work environment case, where no tangible employment action is taken, is subject to an employer’s affirmative defense.79 If the employer proves that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the plaintiff-employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise, then the employer is not liable.80 The Court reasoned that providing the employer with an affirmative defense strikes a balance between the interests of the employer and the employee-victim.81 On the one hand, the Court recognized strict vicarious liability in quid pro quo cases to protect employees from tan[*PG431]gible adverse employment actions.82 On the other hand, the court recognized an affirmative defense for the employer in hostile work environment cases to encourage the employer to implement workplace policies prohibiting sexual harassment and also to encourage employee-victims to report incidents of sexual harassment to the employer.83

The responsibility for defining sexual harassment under Title VII has generally fallen on the federal courts, especially since the Supreme Court’s decisions in Meritor, Harris and Faragher.84 Presently, employers, at least those employing fifteen or more employees, are on notice that their active participation in sexually discriminatory employment practices or failure to police sexually hostile work environments that violate Title VII will result in liability to employee-victims.85 As a result, Title VII’s objective of eliminating sexually discriminatory employment practices has been furthered substantially.86 One question that remains open—at least in the First Circuit—is whether supervisors, who themselves do not employ fifteen or more employees, can be found personally liable for conduct that violates Title VII.87

II.  Courts Apply Different Rules of Statutory Construction to Either Accept or Reject Individual Liability of Supervisors for Sexual Harassment Under Title VII

Professor Karl N. Llewellyn thoroughly catalogued the rules of statutory construction in a 1950 law review article.88 He also explained the primary limitation of their use in interpreting statutes.89 His thesis was that, in any situation requiring the interpretation of a statute, [*PG432]there are at least two opposing rules.90 When applied, the rules lead to different conclusions and there will always be at least two “correct” interpretations.91

Although the “and any agent” clause in Title VII’s definition of employer is arguably ambiguous, Congress did not explicitly provide for individual liability of supervisors in either the original language of Title VII or in the 1991 Civil Rights Act.92 Furthermore, the United States Supreme Court has never considered the question of personal liability of supervisors under Title VII.93 Because Title VII’s prohibitions are directed to “employers,” some courts have disagreed as to whether Title VII’s definition of “employer” should be construed to mean that individual supervisors are “statutory employers” personally liable for violations of Title VII.94

Title VII makes it unlawful for an “employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual [] because of such individual’s race, color, religion, sex, or national origin.”95 Moreover, Title VII defines “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees” and “any agent of such a person.”96 Unfortunately, Title VII’s drafters did not define further the term “agent,” or explain the meaning and purpose of the “and any agent” clause.97 Thus, courts have been forced to interpret the meaning of the “and any agent” clause.98 All courts that have addressed this issue have relied at least in part on the rules of statutory construction to interpret [*PG433]the “and any agent” clause and decide whether supervisors may be sued under Title VII in their individual capacities.99

A.  Most Federal Appellate Courts Apply Rules of Construction to Reject Individual Liability of Supervisors for Sexual Harassment Under Title VII.

Whether the drafters included the “and any agent” clause to allow agents of the employer, such as supervisor-employees, to be held individually liable for their conduct initially caused much disagreement among federal appellate courts.100 Today, however, there is almost complete consensus.101 The list of federal appellate courts that have rejected, or have reversed earlier decisions allowing individual liability under Title VII for supervisors—who are not themselves employers of fifteen or more employees—includes the Courts of Appeals for the Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh and D. C. Circuits.102 Only the Courts of Appeals for the First and Eighth Circuits have not ruled definitively on the issue of individual liability of supervisors under Title VII.103

Many courts that have rejected individual liability recognize that finding supervisors personally liable under Title VII is not completely implausible because Title VII’s “and any agent” clause is vague or ambiguous.104 Nevertheless, these courts have rejected individual liability for supervisors finding, almost uniformly, that Title VII’s statutory scheme indicates clearly that Congress intended employers—not individual employees—to be the proper defendants in Title VII lawsuits.105

[*PG434] Generally, these courts list five reasons why imposing personal liability on individual supervisors under Title VII is improper.106 First, supervisors are not subject to Title VII in their individual capacities because Title VII’s definition of employer limits Title VII’s application to persons who employ fifteen or more employees.107 In other words, Title VII’s plain language excludes individuals from liability unless they employ a certain number of employees.108 Second, under the original version of Title VII, plaintiffs could only be awarded equitable relief and back pay—remedies typically provided by an employer, not by a supervisor in his or her individual capacity.109 This indicates that Congress never contemplated individual liability because employers typically have provided these remedies.110 Third, the 1991 Civil Rights Act caps compensatory and punitive damages for violations of Title VII at specific limits based on the number of workers employed by the employer.111 These caps also signal that Congress did not intend to provide for individual liability.112 Because no cap is mentioned for individuals, it makes no sense that Congress would limit liability for employers based on the size of their operations and subject individuals to unlimited liability.113 Fourth, because the legislative history of Title VII indicates that no mention was made of individual agent liability, Congress did not contemplate individual liability when Title VII was enacted.114

Finally, all courts that reject individual liability for supervisors support their conclusion using the rules of statutory construction.115 Courts vary in their reliance on these rules.116 In deciding whether Title VII’s “and any agent” clause imposes individual liability on su[*PG435]pervisors, courts frequently recite one or more of the following rules of statutory interpretation: (1)a statute cannot go beyond its text; (2)if the language is plain and unambiguous it must be given effect; (3)when the literal interpretation [of statutory language] would lead to absurd or mischievous consequences or thwart the manifest purpose [of the statute] then plain and unambiguous language need not be given effect; (4)if inadvertently inserted or if repugnant to the rest of the statute, words or clauses may be rejected as surplusage; and (5)rules of grammar will be disregarded where strict adherence would defeat [the] purpose [of the statute].117

If the drafters of Title VII did not intend the “and any agent” clause to create individual liability for employees such as supervisors, then what does the “and any agent” clause mean?118 Those courts rejecting individual liability under Title VII typically explain the “and any agent” clause as merely incorporating the doctrine of respondeat superior into the statute: conduct by a supervisor that violates Title VII will be imputed to the employer who will be legally responsible.119

For example, in 1993, in Miller v. Maxwell’s International, Inc., the Ninth Circuit Court of Appeals held that liability did not extend to individual employees for their violations of Title VII.120 The Ninth Circuit stated summarily: “[t]he obvious purpose of this [agent] provision was to incorporate respondeat superior liability into the statute.”121 Furthermore, the Ninth Circuit reasoned that Title VII’s “statutory scheme” indicates that Congress did not intend to hold supervisors directly liable because the plain language of Title VII limits employer liability to those with fifteen or more employees.122 Here, the Ninth Circuit relied heavily on the rules of statutory interpretation to support its assertion.123 Additionally, the court found that Congress’s purpose in establishing this fifteen-employee floor was to avoid burdening small employers with the costs of employment discrimination litigation.124 From this finding, the Ninth Circuit con[*PG436]cluded that “it is inconceivable that Congress intended to allow civil liability to run against individual employees” who would presumably be more greatly burdened by the costs associated with defending allegations of employment discrimination under Title VII than would small employers.125

Similarly, in 1995, in Tomka v. Seiler Corp., a split panel of the Second Circuit Court of Appeals held that three supervisors could not be held personally liable for sexual harassment under Title VII.126 Although the Second Circuit’s decision recognized that a narrow and literal reading of Title VII’s “and any agent” clause suggested that individual agents could be liable as statutory employers, the court rejected such a narrow reading.127 The court found that such a reading conflicted with Congress’s clear intent that Title VII was addressed to employers, not individuals.128 Implicitly, the court used the rules of statutory construction to support its decision.129 Specifically, the court relied on two rules.130 First, plain and unambiguous statutory language need not be given effect when its literal interpretation would lead to absurd or mischievous consequences or thwart the manifest purpose of the statute.131 Second, words or clauses may be rejected as surplusage if inadvertently inserted or if repugnant to the rest of the statute.132 As proof of Congress’s intent to limit Title VII liability to employers, the Second Circuit cited Title VII’s statutory scheme and remedial provisions which exempt employers with less than fifteen employees.133 Because an individual supervisor could never be an employer with fifteen or more employees, the court found that Title VII simply does not impose individual liability upon supervisors.134 Moreover, the Second Circuit found that the “and any agent” language in Title VII’s definition of employer should be interpreted as a simple expression of respondeat superior: discriminatory actions taken by an employer’s agent create legal liability for the employer.135

[*PG437] More recently, in 1996, in Haynes v. Williams, the Court of Appeals for the Tenth Circuit held that a supervisor could not be personally liable under Title VII.136 The Tenth Circuit reasoned that Title VII’s structure and remedial scheme indicated that suits against individuals are inappropriate and contrary to Congress’s intent in enacting Title VII.137 Specifically, the Tenth Circuit cited to the 1991 Civil Rights Act’s caps on compensatory and punitive damages as further indication that Congress did not intend individual liability under Title VII because Congress included no cap for individuals.138 That omission, the Court reasoned, implied that Congress did not consider individuals liable.139 Congress provided damage caps to avoid burdening small entities with litigation costs.140 If Congress protected small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees.141

B.  Federal District Courts in the First Circuit Disagree as to Whether Supervisors May Be Sued as Individuals under Title VII for Sexual Harassment

Over the past five years, the prevailing view among federal circuit courts of appeal is that Title VII imposes no individual liability on supervisors for sexual harassment.142 Despite this growing consensus, the First Circuit Court of Appeals has not ruled on this issue and federal district courts within the First Circuit are split.143 Some courts have held that supervisors can be sued in their individual capacities [*PG438]for sexual harassment under Title VII.144 According to these courts, Congress intended the “and any agent” clause in Title VII to reach supervisors in their individual capacities.145 Because supervisors are common law agents empowered by the employer to make economic decisions such as hiring, promotion and firing that affect other employees under their control, they are statutory “employers.”146 As a result, they may be held jointly and severally liable for conduct that violates Title VII.147 Generally, courts provide three reasons for interpreting Title VII to impose personal liability on supervisors for sexual harassment.148 First, a literal reading of the “and any agent” clause’s plain language indicates clearly and unambiguously that Congress intended supervisors who qualify as agents of the employer to be personally liable.149 Second, Title VII’s broad remedial purpose is best served by reading the “and any agent” clause to provide for joint and several liability because the threat of individual liability deters supervisors directly.150 Third, a narrow reading of the “and any agent” clause reduces it to mere surplusage.151 This violates the longstanding rule of statutory construction that every word and clause of a statute must be given effect.152

Throughout their opinions, courts imposing individual liability on supervisors under Title VII rely for support on the rules of statutory construction.153 Specifically, these courts rely—either implicitly or explicitly—on the following rules:

[t]o effect its purpose a statute may be implemented beyond its text;

the language of remedial statutes will be liberally construed; and

[*PG439]if language is plain and unambiguous it must be given effect.154

For example, in 1994, in Weeks v. Maine, the United States District Court for the District of Maine held that supervisors could be personally liable under Title VII.155 In Weeks, a tax examiner in the State of Maine’s Bureau of Taxation Enforcement Office sued her employer and two of her former supervisors.156 She claimed that the two supervisors retaliated against her—in violation of Title VII—for filing sex discrimination complaints against them.157 The District Court held that the supervisors could be personally liable under Title VII.158 The court reasoned that if supervisors could not be sued in their individual capacities, then they would not be sufficiently deterred by threat of dismissal or discipline by the employer from engaging in conduct violative of Title VII.159 The court opined that this lack of deterrence would undermine Title VII’s “expansive” remedial purpose: “eradicating the evils of employment discrimination.”160 Explicitly, the Court’s opinion relied on the following rules of statutory construction: [t]o effect its purpose a statute may be implemented beyond its text, and the language of remedial statutes will be liberally construed.161

Frequently, those federal courts that have imposed personal liability on supervisors under Title VII cite to the dissenting opinion in Tomka v. Seiler Corp.162 There, the dissent argued that an “employer’s agent” could be held personally liable for discriminatory acts under Title VII.163 The dissent reasoned that the plain language of Title VII allowed for personal liability because Title VII specifically defined “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees . . . and any agent of such a per[*PG440]son.164 The dissent based its argument on the rules of statutory interpretation.165 Specifically, it found that the rules required a literal reading of the statutory language.166 The dissent argued that Title VII’s plain language unambiguously provided for joint and several liability: successful plaintiffs could recover all relief provided for by Title VII against either the employer or any agent of the employer.167 Furthermore, the dissent found that, in limiting the term “agent” in Title VII to merely incorporate the doctrine of respondeat superior, the majority read the statute too narrowly.168 According to the dissent, a narrow reading of the “and any agent” clause conflicted with Congress’s avowed desire that Title VII be construed broadly, consistent with its remedial purpose—ending discrimination in the workplace.169 Again, the dissent relied upon the rules of statutory interpretation and construction to support its conclusion.170

Two months after the Tomka decision in 1995, the United States District Court for the District of Massachusetts held that supervisors could be sued in their individual capacities under Title VII in Ruffino v. State Street Bank and Trust Company.171 In that case, a corporate manager sued her employer and five supervisors alleging hostile work environment sexual harassment and retaliation.172 The supervisors filed motions for summary judgment with the court, arguing that they could not be sued in their individual capacities under Title VII.173 The court denied their motions for summary judgment.174 In reaching this conclusion, the court rejected explicitly the Ninth Circuit’s reasoning in Miller that the “and any agent” clause was meant to incorporate the doctrine of respondeat superior.175 The court found that the plain meaning of Section 2000e(b) provided for joint and several liability [*PG441]holding that both employers, as entities, and their agents, as individuals, are liable for violations of Title VII.176 Relying for support on the rule of statutory interpretation which requires that every word and clause must be given effect, the court found that the Ninth Circuit’s interpretation would reduce the “and any agent” clause to surplusage.177 Implicitly, the court found that this interpretation would clearly violate the rules of statutory construction and, therefore, held that the “and any agent” clause meant that anyone who qualified as an agent of a statutory employer could be held personally liable for violating Title VII.178

More recently, in 1998, in Wyss v. General Dynamics Corporation, the United States District Court for the District of Rhode Island held that supervisors were subject to individual liability under Title VII.179 In Wyss, the plaintiff sued her employer and her two immediate supervisors alleging sex discrimination and retaliation in violation of Title VII.180 Subsequently, the plaintiff’s supervisors filed motions to dismiss with the court arguing that they could not be sued under Title VII in their individual capacities.181 Denying their motions, the court held that the employee-supervisors were subject to personal liability under Title VII.182 Referring to the dissent in Tomka as “the best reasoned and most comprehensive opinion written on the subject,” the court relied heavily on that opinion’s analysis and on the rules of statutory construction to support its holding.183 Applying the rules of statutory interpretation, the court stated that it had to look first to Title VII’s plain language.184 The court cited a “long-standing view of statutory construction . . . grounded upon a jurisprudential interest in the separation of federal powers under the Constitution,” that courts should not look beyond the plain language of a statute for its meaning, if the plain language of the statute is clear and unambiguous.185 According to the court, to do so would amount to judicial usurpation of legislative power.186 Looking to Title VII’s definition of employer, [*PG442]the court found that the “and any agent” clause was an unambiguous statement providing joint and several liability for violations of Title VII.187 Furthermore, the court found no internal conflict within Title VII’s language that would require another interpretation.188 In addition, the court reasoned that this interpretation best served Title VII’s broad remedial purpose of discouraging discrimination.189 Here, implicitly, the court applied the rule of statutory interpretation that remedial statutes should be interpreted broadly to effect their purpose.190

The court criticized the argument that it was inconceivable Congress would cap damages on small employers in the 1991 Civil Rights Act’s amendments to Title VII and not mention caps on individuals if it had contemplated individual liability under Title VII.191 The Court found it logical, even likely, that Congress would protect small companies without providing caps on damages for individual violators of Title VII.192 Thus, the court found that individual supervisors are liable under Title VII.193 Here, the court invoked another rule of construction: a court should not look for an “implication” of congressional intent and should not infer intent from silence.194 Furthermore, the court disputed the contention that the remedies available to successful plaintiffs under the original Title VII—back pay and equitable relief—indicated that Congress did not intend for individuals to be personally liable because these remedies are more readily provided by employers.195 The court found this reasoning dubious because individuals could just as easily be ordered to pay back wages and be ordered to comply with court ordered injunctions to refrain from discriminatory practices.196

By contrast, other federal district courts within the First Circuit have rejected individual Title VII liability of supervisors for sexual harassment.197 The most recent example is Horney v. Westfield Gage [*PG443]Company.198 In that case, the court granted a supervisor’s motion to dismiss for failure to state a claim holding that there is no individual supervisor liability under Title VII.199 The court relied in part on the rule of statutory construction that the interpretation of a statute must begin with its plain language and end there if the language is unambiguous.200 The court also relied on the Ninth Circuit’s reasoning in Miller and the Second Circuit’s reasoning in Tomka concerning the language and remedial structure of Title VII.201

III.  The Rules of Statutory Construction are Insufficient to Resolve the Dispute as to Whether Title VII Imposes Individual Liability on Supervisors for Sexual Harassment

Courts’ reliance on the rules of statutory construction to determine whether Title VII’s “and any agent clause” provides for individual liability may mislead observers and practitioners into thinking that applying the rules is sufficient to resolve this dispute.202 Even a cursory analysis of court opinions demonstrates that courts on both sides of this issue—those holding no individual liability and those holding supervisors personally liable—rely to a great extent on the rules of statutory construction to support their conclusions.203

[*PG444] Some opinions seem to suggest that the straightforward application of one or more rules of construction will lead unavoidably to the “right” conclusion.204 This implication depends on at least two assumptions—each of which may mislead practitioners and observers.205 The first assumption is that, in interpreting the meaning of statutory language, courts apply only the rules of statutory construction.206 The second assumption is that applying one or more of the rules leads mechanically to one “right” answer.207 The first assumption is misleading because, in reality, courts do not reach a particular result in interpreting a statute by applying only the rules of statutory construction.208 Even before looking to the “plain language” of the statute, all courts—whether consciously or subconsciously—consider Congress’s purpose in enacting the statute, or the problem Congress sought to redress.209 The second assumption is misleading because, in any given situation calling for the interpretation of statutory language, there are at least two rules of statutory construction in direct opposition to each other that courts can select to reach different “right” answers.210 For every rule or canon of statutory construction, there is another equally venerable but contradictory rule.211 For example, the rule “a statute cannot go beyond its text” can be contrasted with the rule “to effect its purpose a statute may be implemented beyond its text.”212 There is never only one “right” way to interpret statutory language using the rules of statutory construction, there are always at least two.213 For example, in Ruffino, Weeks, and Wyss, the courts implied that their decisions were based primarily on the rules of statutory construction; especially the rules which state:

no construction of a statute should be adopted if it makes words or clauses in the statute redundant or meaningless;

in interpreting a statute all words should be given effect; and

[*PG445]the language of remedial statutes will be liberally construed.214

Explicitly, these courts found that interpreting the “and any agent” clause in Title VII’s definition of “employer” to simply incorporate the doctrine of respondeat superior would reduce the clause to “mere surplusage.”215 The doctrine of respondeat superior, they argued, would be applied under common law principles even absent the “and any agent” clause.216 As a result, the courts in Ruffino, Wyss and Weeks found this interpretation of the “and any agent” clause redundant and meaningless.217 Such an interpretation would violate the statutory rules of construction that no interpretation of a statute should be adopted if it makes words or clauses in the statute redundant or meaningless, and the rule that all words of a statute should be given effect.218

Further, the courts in Ruffino and Wyss found that the “and any agent” clause is unambiguous.219 Thus, reference to anything other than the plain language of the “and any agent” clause is unnecessary.220 For these courts, there simply is no question that Congress meant supervisors, as agents with hiring and firing authority, to be liable.221 Seemingly, to support their conclusion that supervisors are individually liable under Title VII, these courts would prefer to rely exclusively on the most powerful rule of statutory construction—a statute cannot go beyond its text.222 This rule of statutory interpreta[*PG446]tion means that, in general, courts will consider extrinsic evidence such as legislative history, the structure of the act, and its purpose to interpret the statute’s language only if the language is facially vague or ambiguous.223 Apparently, some courts would not look at anything beyond the words “and any agent” to determine the meaning of this clause.224 Thus, courts finding supervisors liable under Title VII arrive at their holdings seemingly through a mechanical application of one or more rules of statutory construction.225 Observers may be misled into thinking that supervisors are liable under Title VII because the rules of statutory construction demand this result.226

Similarly, courts finding no individual liability of supervisors under Title VII arrive at their holdings through an equally mechanical application of one or more rules of statutory construction.227 These courts, however, rely in most cases on conflicting rules.228 For example, in Miller and Tomka, the courts supported their rejection of individual liability for supervisors under Title VII by relying on opposing rules of statutory construction, such as:

Statutory language must not be given effect when the literal interpretation would lead to absurd or mischievous consequences or thwart the manifest purpose of the statute.229

[*PG447]The courts in Miller and Tomka found that interpreting the “and any agent” clause to impose individual liability on supervisors was “inconceivable” to Title VII’s drafters because the statute as originally enacted was addressed only to employers and provided remedies only employers could provide.230 Thus, the courts in Miller and Tomka relied on the rules of statutory construction to reject individual liability for supervisors as an “absurd” or “mischievous” result.231 Observers may be misled into thinking that the rules of statutory construction demand this result.232 They should be aware of the limitations of the rules of statutory construction.233 To avoid confusing practitioners and observers, Courts should rely less on the rules of statutory construction.234 Instead, courts’ should rely more on an examination of Congress’s purpose in enacting Title VII and the measures Congress selected to effect this purpose.235 By considering Congress’s purpose and chosen measures—as evidenced by the language and structure of Title VII—it seems that the better reasoned view is that Congress did not intend to impose Title VII liability on individual supervisors for sexual harassment.236

It is true that when viewed on its face and in isolation from the rest of the statute, the “and any agent” clause suggests that individuals who qualify as agents of the employer are individually liable.237 Strict reliance on the rule of construction which states that a statute’s language should be given effect if it is plain and unambiguous would lead to the conclusion that supervisors are liable because they are common law agents of the employer.238 Viewed in this way, it is not [*PG448]implausible to argue that the “and any agent” clause is independent from the first clause of the sentence and, therefore, plainly means that “agents” are themselves “statutory employers” answerable directly under Title VII’s substantive sections.239 When viewed in light of Title VII’s language and structure and Congress’s purpose in enacting Title VII, however, this interpretation is untenable.240 Both Congress’s purpose in enacting Title VII and the statute’s language and structure indicate clearly that Congress meant only employers and not individual supervisors to be proper defendants in Title VII lawsuits.241

As the courts said in Miller, Tomka and Wathen, the language and structure of Title VII, as originally enacted, indicate that Congress did not contemplate individual liability of supervisors for sexual harassment.242 The prohibitive sections of Title VII are addressed to “employers.”243 Title VII provides, in relevant part, that “[i]t shall be an unlawful employment practice for an employer [] to discriminate against any individual with respect to his [] terms, conditions, or privileges of employment, because of such individual’s [] sex.”244 Further, Title VII defines employer as “a person engaged in an industry affecting commerce who has fifteen or more employees . . . .”245 Seemingly, Congress limited Title VII liability to employers with 15 or more employees because employers have the most control over the workplace.246 Thus, Congress placed the burden of liability on those entities in the best possible position to effect change and eliminate discriminatory workplace practices to the greatest extent possible.247

In addition, Congress’s passage of the 1991 Civil Rights Act without mention of individual liability confirms that Congress did not intend individual liability for supervisors under Title VII.248 The language of the 1991 Civil Rights Act indicates that Congress meant to limit liability under Title VII to “employers” and not extend liability to individual supervisors.249 If Congress had contemplated individual [*PG449]liability under Title VII for compensatory or punitive damages, it would have included individuals in the listing of limitations on damages and would have discontinued the exemption for small employers.250 Congress enacted the 1991 Civil Rights Act in part because it found that additional remedies were needed to deter employment discrimination.251 To effect this purpose, Congress made compensatory and punitive damages available as additional remedies for violations of Title VII.252 Before the Civil Rights Act was enacted, a court could order injunctive relief, such as reinstatement, or award back pay with interest on behalf of a successful Title VII plaintiff.253 Compensatory damages could include amounts for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish and loss of enjoyment of life.254 Punitive damages could be awarded under the 1991 Civil Rights Act to a plaintiff who shows that the defendant engaged in discrimination with “reckless indifference” or “malice.”255 Importantly, though, Congress provided for limitations on the amounts of compensatory and punitive damages a plaintiff could be awarded.256 These limitations are based on the number of employees employed by the defendant.257 For example, employers employing between fourteen and one hundred and one employees can be liable to each plaintiff for a maximum amount of $50,000 in compensatory and punitive damages.258 A defendant-employer employing more than 500 employees could be liable for a maximum of $300,000.259 The 1991 Civil Rights Act does not address employers who employ less than fifteen employees because they are not subject to Title VII.260 Nor does the 1991 Civil Rights Act address explicitly the liability of individual employees for conduct that constitutes actionable employment discrimination.261 This sliding scale of liability does not stipulate [*PG450]an amount in cases where a plaintiff seeks to hold an individual supervisor liable.262

The enacted version of Title VII represents a compromise between competing—and compelling—interests.263 On the one hand, is the employers’ prerogative to control their businesses and workplaces free from the interference of the courts acting as a super human resources department.264 On the other hand, of course, is the interest of equal opportunity in the workplace.265 Moreover, Title VII represents Congress’s limited commitment of federal judicial resources to eliminate—to the greatest extent possible—discrimination in the workplace.266 The courts should respect Congress’s limited commitment of federal judicial resources.267 Even if the current circumstances in the workplace demand otherwise, which they do not currently, Congress, not the courts, is the proper body empowered to address changed circumstances through statutory amendments.268

Congress could have made all employers, regardless of size, responsible for discriminatory workplace practices.269 Similarly, Congress could have made any “person” legally responsible for discriminatory workplace practices.270 Yet, Congress did not incorporate these more sweeping measures into the language of Title VII as it was enacted even though these measures would have been more effective in [*PG451]furthering the purpose of eliminating discriminatory workplace practices.271 Instead, Congress immunized employers who employ less than fifteen employees in order to achieve a political compromise.272 Through this compromise, Congress cut a wide swath through the ranks of employers who had either actively promoted or passively tolerated overtly discriminatory workplace practices.273 Congress did not, however, ensure the complete eradication of discrimination in employment because some workplaces were intentionally left uncovered by the statute.274

In Meritor, Harris and Faragher, the United States Supreme Court furthered Congress’s purpose by interpreting Title VII to prohibit sexually hostile work environments.275 Certainly, pockets of sex-based discrimination still exist in workplaces throughout the country; however, unlike the situation before Title VII, it is the rare employer today who does not have and enforce workplace procedures designed to prevent and correct sexual harassment.276 Indeed, only employers who implement policies to detect and eliminate sexual harassment may successfully invoke the affirmative defense provided by the United States Supreme Court in Ellerth and Faragher.277 Employers who employ less than fifteen employees and are, therefore, not answerable under Title VII are deterred similarly, though perhaps not to the same degree, by state anti-discrimination and tort laws.278 We have paid for the benefit of less employment discrimination through the operation of Title VII in increased litigation in the federal courts and administrative filings with state anti-discrimination agencies and the EEOC.279 Today, employment discrimination litigation comprises almost ten percent of the federal court docket.280

[*PG452] The return on Congress’s investment—harassment-free workplaces for the majority of employees—has been worth the expense. Allowing supervisors to be sued individually in the federal courts for violations of Title VII, however, would mean a significantly increased expense in terms of federal judicial resources.281 Congress did not contemplate this level of commitment in 1965 when Title VII was enacted.282 Moreover, in enacting Title VII, Congress did not intend to create a freestanding federal tort whereby individuals could be held liable directly.283 In fact, the Supreme Court has recognized that Congress intended a limited statutory scheme and did not intend to enact a “general civility code.”284 Thus, allowing plaintiffs to sue workplace supervisors in their individual capacities represents an expansion of the field of sex discrimination litigation that Congress did not intend.285 Apparently, some courts have found that circumstances have changed significantly since 1965, warranting a expansion in the commitment of federal judicial resources to eradication sexual harassment of workers by supervisors.286 Even if this were an accurate description of the current environment, Congress and not individual federal district courts are the legislative body properly empowered to make this further commitment of limited resources.287 Limiting liability under Title VII to employers conserves scarce judicial resources and preserves the balance of power between the legislative and judicial branch.288

[*PG453]Conclusion

Court opinions interpreting the “and any agent” clause in Title VII’s definition of “employer” rely excessively on the rules of statutory construction. Observers and practitioners may be mislead into thinking that applying the rules of construction is sufficient to resolve the dispute over individual liability of supervisors under Title VII. Instead, courts should emphasize Congress’s purpose in enacting Title VII as evidenced by the entire statute’s language and structure. Using this approach, the better reasoned view is that, in enacting Title VII, Congress’s purpose was to eliminate discriminatory employment practices to the greatest extent possible using a limited commitment of federal judicial resources. The better reasoned view is that Congress and the United States Supreme Court in Ellerth and Faragher chose to use the employer to police its supervisors rather than hold supervisors individually liable. As a result, employers—not supervisors in their individual capacities—are the proper defendants in Title VII lawsuits.

Scott J. Connolly

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