Personal Liability of Corporate Officers for Discrimination in Violation of Federal Title VII or Massachusetts G.L. c. 151B
by Roger T. Manwaring

Both federal and Massachusetts law prohibit employers from discriminating on the basis of, among other things, race, gender or national origin. Where a corporate employer discriminates, the question arises whether the plaintiff employee can recover damages not only from the corporate entity, but also from individual corporate officers or supervisory employees. The answer depends on whether the plaintiff is suing under Massachusetts or Federal law (many types of discrimination are actionable under both and the plaintiff may include both state and federal claims in the same complaint).
 

No personal liability under federal law. The applicable statute for most, but not all, federal discrimination claims is commonly known as Title VII. The courts have almost uniformly held that Title VII does not provide for individual liability of corporate officers.
 

The relevant provision of Title VII defines an “employer” subject to Title VII as “a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person.” Plaintiffs seeking to hold corporate officers personally liable under Title VII have argued that by including the phrase “any agent” in the definition of “employer,” Congress must have intended to include individual officers.
 

Despite its initial appeal, every federal court of appeals to have decided the issue, and most district courts in the First Circuit (which includes Massachusetts) have rejected this argument. The courts point out that, if “employer” really included all agents, then other provisions of title VII would not make sense. For example, Congress imposed on “employers” certain record keeping requirements, but clearly did not intend to required individual officers to keep such records. Similarly, while Title VII affords a plaintiff employee remedies against an employer, which include reinstatement and back pay, an individual corporate officer has neither the capability nor the authority to provide those remedies. For these and other reasons, federal Title VII does not impose personal liability on corporate officers.
 

There is individual corporate officer liability under Massachusetts G.L. c. 151B. Chapter 151B is the primary Massachusetts statute prohibiting discrimination in the workplace. Unlike Title VII, c. 151B employs language which expressly contemplates individual liability on the part of corporate officers.
 

While many of the provisions of c. 151B apply to an “employer,” others prohibit conduct by any “person.” Chapter 151B, § 4(4A) and § 4(5) state:
 

It shall be an unlawful practice:
 

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4A. For any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter, or to coerce, intimidate, threaten or interfere with such other person for having aided or encouraged any other person in the exercise or enjoyment of any such right granted or protected by this chapter.
 

5. For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.
 

(Emphasis added.) The courts consistently have held that these sections create personal liability.
 

Interference under G.L. c. 151B, § 4(4A). Under the test applied by the Massachusetts courts, any person, whether an officer, supervisor or even a co-worker, can be held personally liable if he or she actually participated in discriminatory conduct. Further, a corporate officer not directly involved in the discriminatory conduct sometimes may still be held liable for having failed to act to stop discrimination by others. Such nonfeasance is actionable if the officer failed to act in “deliberate disregard” of the plaintiff’s rights. It is the disregard that justifies an inference that the defendant officer had discriminatory intent.

The required discriminatory intent does not exist where a corporate officer fails to act simply due to inattention. To hold an officer liable for failure to act in deliberate disregard of the plaintiff’s rights, the plaintiff must establish that the defendant officer had actual knowledge that discrimination was occurring, was in a position to stop it, and had a duty to do so.
 

Notably, because the plaintiff must prove discriminatory intent, a corporate officer will not be held personally liable solely because he or she was the decision-maker with regard to the adverse employment action (termination, demotion, failure to promote, etc.) about which the plaintiffs complains.
 

Aiding and abetting under G.L. c. 151B, § 4(5). The standard of liability for aiding and abetting under § 4(5) is similar to that for interference under § 4(4A), because aiding and abetting may be based on nonfeasance where the defendant officer knows of the discrimination, has the authority and the duty to act, fails to act in deliberate disregard of the plaintiff’s rights, and the failure to act harmed the plaintiff.
 

If you have questions regarding this or any other legal matter, please contact Roger T. Manwaring, Esq. at rtm@barronstad.com or (617) 531-6584.