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back to index backAMERItalk July,  2005


Supervisors who engage in discriminatory conduct may be individually liable under the Michigan Civil Rights Act

Employer (and agents) beware.


In Elezovic v. Ford Motor Co., decided June 1, 2005, the Michigan Supreme Court held that an individual supervisor who engages in discriminatory conduct in violation of the Michigan Civil Rights Act (MCRA) can be held individually liable.

In Elezovic the plaintiff sued Ford Motor Co. and her supervisor alleging the supervisor sexually harassed her. Because the plaintiff failed to give Ford Motor Co. adequate notice of the claimed sexual harassment the Court held that Ford had no liability. But, the Court held that the supervisor, as an agent of Ford Motor Co., could be held individually liable for alleged sexual harassment committed by him.

The Court noted that the MCRA provides that "Employer means a person who has one or more employees and includes an agent of that person.". The Court stated that this language not only confers vicarious liability on the agent's employer but also makes the agent "tantamount to the employer" so that the agent is subject to individual liability along with the employer.

The Court further noted that it was not deciding whether a distinction can be drawn between supervisory and nonsupervisory employees in regard to agency because that issue was not raised in this case. Accordingly, we are left with the specter that a non-supervisory employee may in some circumstances be individually liable for his/her discriminatory conduct.

The Elezovic decision does not have any impact on the employer's vicarious liability for discriminatory actions of supervisors under established law. The significance of the decision is the imposition of individual liability on supervisors for their discriminatory conduct, whether or not the employer is also subject to liability, opening the door for complaining employees to sue both their employer and their supervisor(s) for discrimination.

This decision poses a problem in cases where the employer and an individual supervisor are both named as defendants in an employment discrimination action. In deciding whether to have the employer's attorney represent both the employer and the individual supervisor potential conflicts of interest must be considered and addressed. The employer should consult with legal counsel before making any commitment to provide legal representation for the individual supervisor.

Employers should promptly recommit to communicating their non-discrimination and non-harassment policies to all employees and should emphasize to all managerial and supervisory employees that they can be held individually liable for discriminatory acts committed by them. Employers should seek the guidance of legal counsel in regard to the content of training or other means of communicating these policies.


Source: Butzel Long - GAI


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