This Article addresses the issues of vicarious and personal liability for employment discrimination as a coherent whole. Part II examines the prevailing view on an employer's vicarious liability for employment discrimination under Title VII, the ADEA, and the ADA. Part II further discusses the exception to vicarious liability that has developed in hostile work environment cases and examines the justifications advanced for that exception. My point here is not so much to debate whether such an exception should exist but to determine whether the arguments against vicarious liability in hostile work environment cases justifiably can be limited to that context. I conclude they can and should be. As discussed in Part III, vicarious employer liability is the congressionally chosen method for remedying employment discrimination, and courts have acted correctly in applying this approach to Title VII and its companion statutes. Any attempt to have the hostile work environment tail wag the employment discrimination dog should be rejected as out of step with the statute's wording, history, and purpose. At the same time, many of the arguments in favor of vicarious employer liability are inconsistent with imposition of personal liability. Part IV addresses the issue of personal liability and concludes that it is at odds with both the statutory structure and the National Labor Relations Act precedent on which Title VII was modeled and is unnecessary as a deterrent in light of vicarious employer liability. Therefore, the statutes should be interpreted to reject personal liability.
Rebecca H. White,
Vicarious and Personal Liability for Employment Discrimination
Available at: https://digitalcommons.law.uga.edu/fac_artchop/145