Need a new weapon in the fight to convince managers they need to understand retaliation and bias law? This is it.
A recent case found that both HR managers and supervisors can be held personally liable for certain bias and retaliation claims.
That’s very different from many employment law cases, where only the company can be sued.
The difference: This case was filed under Section 1981 – a federal statute that prohibits race bias and retaliation in contractual relationships.
That includes at-will employment.
Worse, this ruling greatly expands the people who can be held liable to include:
- employees who participate in an adverse action, and
- staffers with a retaliatory or discriminatory motive who influence an adverse decision.
That can include HR pros and front-line managers.
Repeated racial remarks
Here’s a rundown of the case.
Darrel Smith worked as a process technician at a chemical plant in Illinois.
Three years into his employment, Smith, who was black, began being verbally harassed by his white supervisor and his co-workers.
He also discovered garbage and feces in his locker.
Smith said he complained to HR, but the firm’s HR manager, Denise Bray, said she was never made aware of any complaints.
When Smith told his manager he’d get a lawyer to address the harassment, the manager said Smith would regret doing so. Smith was eventually fired for excessive absences.
Here’s where things get interesting.
Smith filed race bias and retaliation lawsuits against not just his company, but also against his white manager and Bray, the HR manager, under Section 1981.
By the time the suit was filed, though, the firm had gone bankrupt.
That left just the suits against the manager and Bray. The manager settled. Bray fought the case in court.
The court came to a shocking conclusion: The HR manager could be held personally liable if she shared the manager’s racial bias or retaliatory motive.
However, the court eventually ruled in Bray’s favor – it couldn’t prove she wanted to retaliate against Smith.
What’s it mean?
Though the court ruled in favor of the HR manager, the implications of the ruling may be far-reaching.
Staffers who file suit under Section 1981 can sue their employer, HR pros and any employee they think may have had a role in deciding to take an adverse action.
Worst of all: Section 1981 has a four-year statute of limitations and allows for uncapped damages.
So what can you do to protect yourself from these lawsuits? One word: Investigate.
Employers must conduct thorough and in-depth investigations before taking adverse employment actions.
That way, any non-decision-makers can show they weren’t involved in the termination decision – and firms will have the evidence to prove the legitimate reasons for the firing.
Cite: Smith v. Bray. For a look at the full decision, go here.