When a Lawsuit Has Your Name on It ..

It’s an uncomfortable thing to have your company named in an em-ployment lawsuit. It’s an even more uncomfortable thing to find your name on the list as an individual defendant. More and more, that’s just what’s happening to supervisors and HR professionals. Larry C. Drapkin, partner in the labor and employment law department at Los Angeles-based Mitchell Silberberg & Knupp L.L.P., explains what happens when a supervisor is named, and offers possible defenses.

Is the naming of individual supervisors a recent trend?
It isn’t brand new—it’s been happening a number of years now. There are a number of reasons for it. Of course in some instances there’s a perception by the plaintiff that these supervisors are legitimate defendants who’ve done something to contribute to the problem.

But also I think there’s a philosophy among some plaintiffs’ counsel that the more defendants the merrier, because that’s more likely to force a larger number of attorneys to get involved, and higher costs will be associated with the case and perhaps that will force the defendant into settlement. So there’s an economic-pressure issue. Moreover, I think the perception is that it gives managers a personal interest in getting the case done with because now they not only have to deal with defending a case on behalf of the company, but they have the added pressure and personal upset of being named as a defendant.

Also from a strategic point of view, naming an individual supervisor can sometimes help a plaintiff to keep a case out of federal court. Sometimes a case can be removed by the defendants to federal court—if, in a company with [national offices], the plaintiff is from one state, the defendant from another. Sometimes supervisors in the plaintiff’s state are added as defendants so the case will stay in state court, because the perception is state courts apply the law in a way that’s more plaintiff favorable. There’s a way to challenge that—bringing a motion to dismiss on grounds that this is a sham defendant.

Is there a type of case in which individuals tend to be named?
You see it more in the discrimination arena. But we’ve seen it in cases that don’t involve discrimination also—in cases where the plaintiffs alleged that somebody caused them emotional distress or other issues not related to discrimination.

When a person is named individually, what should he or she do?
First, just like any defendant, the person needs to have the best representation possible under the circumstances, and should take it very seriously because they could potentially face legal liability based on the strengths of the claims. They need to coordinate a defense with the employer. Oftentimes there’s the possibility of a joint defense with representation by a company’s attorney. Of course, if a supervisor is accused of personally having done some bad acts, there’s a strategy question of whether there should be joint representation. Then there are issues of insurance coverage and practical issues of cost. In most cases those issues are worked out cooperatively with the company being involved in the process.

Can an individual supervisor be found guilty and the company not be found guilty?
There are some circumstances for which that could happen, depending on the state. In some harassment cases that could happen if the supervisor is the one being sued for harassment. Some states have strict liability doctrines when a supervisor is sued; others look at where the conduct occurred—in the workplace or in someone’s home on the weekend—because if the conduct is outside of the scope of the supervisor’s employment, the individual could have personal liability and it is possible the employer wouldn’t be liable. But in the garden-variety case, when a person doesn’t like the decision the supervisor made—”He terminated me because I’m a woman”—that kind of claim, if successful, leads to employer liability.

What are defenses for individuals?
There’s a growing body of case law that, depending on the state, suggests that a supervisor would have a defense to certain claims that are based on normal personnel decision-making. In California there’s a case pending before the state Supreme Court that will address whether an individual can be sued for discrimination when alleged discriminatory action arises out of personnel decision-making as opposed to intentional conduct outside of the management function. For in-stance, direct sexual harassment by a supervisor isn’t part of the normal decision-making process. Distinguish that from a situation in which someone says “I was discriminated against because of my age or sex. They kept someone who’s male and let me go because I’m female.”

In these types of cases a growing number of federal and state courts have held that the individual supervisor can’t be sued. There’s a defense of manager’s privilege that essentially acknowledges that managers can’t perform their jobs without engaging in decision-making that might be second-guessed by a court. [That privilege maintains] that when they’re acting in the realm of normal management function, supervisors should have protection against personal liability because they’re acting on behalf of the employer. The employer bears the liability if managers aren’t performing their jobs well. So that’s the type of defense that would help a manager. It’s a defense that should always be considered.

What else should be considered?
Because there are a number of defenses available to managers who are sued in their managerial capacities, it’s very important to explore whether they could get out of a case on an initial motion. The question is whether [the attorney] can look at the allegations in the complaint and analyze the law and say, “No, this is precluded by the manager’s privilege” or “This is precluded because you can’t sue an individual for discrimination under this state law or Title VII.”

What’s an example?
On discrimination, the law varies from state to state as to whether an individual can be sued. In California, there’s a significant case, Janken v. G.M. Hughes Electronics, that stands for the proposition that [complaints] arising out of the personnel functions aren’t actionable under state discrimination laws. Like-wise, a number of federal circuit courts have held that under Title VII an individual supervisor can’t be sued.

Oftentimes [the attorney] can get an individual [removed from a case]. When I litigate one of these cases the first thing I do is try to weed out as many of the defendants as I can. Oftentimes it’s by negotiation with the other side: I let them know why as a matter of law they can’t maintain a claim against the individual. Sometimes it’s as easy as that.

What can supervisors do to safeguard themselves?
In the workplace, supervisors can never do their jobs too well. That’s not the only reason they get sued, and some people will get sued despite doing excellent jobs. But if you want to talk about the first way of preventing a personal lawsuit, people need to do their jobs in the best way possible. They should know what to look for and how to handle themselves as supervisors; they should make sure they’ve received all the appropriate training on sexual harassment and workplace discrimination issues; they need to make sure they know how to identify and investigate complaints and do so in a timely fashion. HR should make sure managers know how to identify problems before they fester. These things will help managers maintain a better rapport with individuals as opposed to them being seen by the plaintiff as the cause of the problem. That’s important because the workplace relationship has an emotional component—always has, always will.

Workforce, June 1998, Vol. 77, No. 6, pp. 119-122.