Carr v. United Parcel Service

• Decision Date: 27 October 1997
• Citation: 72 Empl.Prac.Dec.P 45,955 S.W.2d 832
• Parties: 72 Empl. Prac. Dec. P 45,053 Kelly CARR, Plaintiff/Respondent, v. UNITED PARCEL SERVICE, et al., Defendant/Petitioners.
• Court: Tennessee Supreme Court

Page 832

955 S.W.2d 832

72 Empl. Prac. Dec. P 45,053

Kelly CARR, Plaintiff/Respondent, v. UNITED PARCEL SERVICE, et al., Defendant/Petitioners.

Supreme Court of Tennessee,

at Nashville.

Oct. 27, 1997.

Deanna C. Bell, Nashville, for Plaintiff/Respondent.

Pamela Lynn Reeves, Knoxville, for amicus curiae, Tennessee Municipal League Risk Management, et al.

Charles Hampton White, Rebecca Wells Demaree, Nashville, for Defendants/Petitioners.

Joyce M. Grimes, Nashville, for amicus curiae, Joyce M. Grimes.

OPINION

HOLDER, Justice.

This case comes to us on a certified question of law. The plaintiff, Kelly Carr, filed a sexual harassment action in the United States District Court for the Middle District of Tennessee alleging violations of both Title VII of the Civil Rights Act of 1964 ("Title VII") and the Tennessee Human Rights Act ("THRA"). She named as defendants her employer, United Parcel Service ("UPS"), and three UPS employees, Ron Foster, Martin Sisk, and Andrew Martin. Foster, Sisk, and Martin filed a motion for judgment on the pleadings arguing that they could not be held individually liable under either Title VII or the THRA. The district court entered an order requesting this Court "to resolve the issue of whether a defendant can be held individually liable under THRA." We accepted certification of the question. We hold that, under the facts as certified to us, the THRA does not impose individual liability in this case.

BACKGROUND

Plaintiff alleges that she was physically and verbally sexually harassed by Foster during her employment with UPS. Plaintiff maintains that on or about January 29, 1993, Foster rubbed her posterior and stated "I just rubbed Kelly's ass. I hope she does not file harassment charges." Plaintiff contends that Sisk, a supervisor, witnessed the January incident and failed to take remedial action. Plaintiff apparently alleges several other instances of sexually offensive conduct involving the defendants either directly or indirectly. The allegations are not specified in the record. ¹ The record before us is also devoid of specific allegations of sexual harassment against Martin.

EMPLOYMENT-RELATED DISCRIMINATION

The THRA is a comprehensive anti-discrimination statute that is codified at Tenn.Code Ann. § 4-21-101 to -905 (Repl.1991 & Supp.1996). Tennessee Code Annotated § 4-21-401 prohibits employment-related discrimination and provides in pertinent part:

It is a discriminatory practice for an employer to:

(1) Fail or refuse to hire or discharge any person or otherwise to discriminate against an individual with respect to compensation, terms, conditions or privileges of employment because of such individual's race, creed color, religion, sex, age or national origin;

Tenn.Code Ann. 4-21-401(a). The THRA defines "employer" to include:

... the state, or any political or civil subdivision thereof, and persons employing eight (8) or more persons within the state, or any person acting as an agent of an employer, directly or indirectly;

Tenn.Code Ann. § 4-21-102(4) (Supp.1996). Our initial inquiry is whether the legislature intended to impose individual liability by defining employer to include "any person acting as an agent of an employer."

Although the language of Title VII and the THRA differ slightly, it is clear that the legislature intended the THRA to be coextensive with federal law. Bennett v. Steiner-Liff Iron and Metal Co., 826 S.W.2d 119, 121 (Tenn.1992) (citing Tenn.Code Ann. § 4-21-101(a)(1) (1991 Repl.) (stating purpose and intent of general assembly was to "provide for execution of the policies embodied in the federal Civil Rights Acts of 1964, 1968 and 1972, ...")). We, therefore, may look to federal interpretation of Title VII for guidance in enforcing our own anti-discrimination statute. We, however, are neither bound by nor limited by federal law when interpreting the THRA.

Title VII defines employer as including "any agent" of the employer. The majority of the federal circuits addressing this issue have held that the "any agent" provision incorporates respondeat superior liability ² and does not impose individual liability. Dici v. Pennsylvania, 91 F.3d 542, 552 (3d Cir.1996); Tomka v. Seiler Corp., 66 F.3d 1295, 1312 (2d Cir.1995); Greenlaw v. Garrett, 59 F.3d 994, 1001 (9th Cir.1995), cert. denied, --- U.S. ----, 117 S.Ct. 110, 136 L.Ed.2d 63 (1996); Gary v. Long, 59 F.3d 1391, 1400 (D.C.Cir.1995); EEOC v. AIC Security Investigations, 55 F.3d 1276, 1281 (7th Cir.1995); Lenhardt v. Basic Inst. of Tech., 55 F.3d 377, 381 (8th Cir.1995); Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir.1994); Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir.1993); Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587 (9th Cir.1993); Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991) (per curiam). These circuits have reasoned that individual liability is inconsistent with Title VII's original remedy provision and its exemption for small businesses.

The THRA's definition of employer is ambiguous and susceptible to two reasonable interpretations. Plaintiff urges that every supervisor is an "employer" for purposes of the THRA. Under this construction, supervisors may be held individually liable for violations of the THRA. A second construction is that an employer is vicariously liable for its supervisory employees' quid pro quo violations of the THRA.

We find the vicarious liability construction more compelling for the following reasons: (1) the construction is consistent with the THRA's exemption for small businesses; (2) agents are generally not individually liable for acts undertaken on behalf of a disclosed principal that are within the legitimate scope of the delegated management authority; ³ and (3) the construction is consistent with the federal courts' interpretation of Title VII. The slight deviation of the THRA's definition of employer from Title VII's definition does not warrant an interpretation that would be inconsistent with Title VII. We agree with the federal courts' analyses and hold that the THRA's "agent of an employer" language does not impose individual liability.

Our inquiry, however, does not end with this conclusion as the THRA is broader than Title VII in terms of who may be held liable for harassment and discrimination. The THRA is applicable to entities employing fewer employees than that required by Title VII. See Tenn.Code Ann. § 4-21-102(4) (defining employer to include persons employing eight or more persons); but see 42 U.S.C. § 2000e(b) (defining employer as person employing fifteen or more employees). Moreover, the THRA provides that [i]t is a discriminatory practice for a person or for two (2) or more persons to:

. . . . .

(2) Aid, abet, incite, compel or command a person to engage in any of the acts or practices declared discriminatory by this chapter;

Tenn.Code Ann. § 4-21-301(2) (1991 Repl.). A "person" is defined as "one (1) or more individuals, governments, governmental agencies, public authorities, labor organizations, corporations, legal representatives, partnerships, associations,.. unincorporated organizations or other organized persons." Tenn.Code Ann. § 4-21-102(14). Accordingly, we find that an individual who aids, abets, incites, compels, or commands an employer to engage in employment-related discrimination has violated the THRA.

Because Tenn.Code Ann. § 4-21-301(a)(2) creates accomplice liability, we must analyze the elements of accomplice liability to determine how an individual employee might aid and abet an employer in violating the THRA. The THRA does not provide a definition of "aiding and abetting." The common law civil liability theory of aiding and abetting required that:

the defendant knew that his companions' conduct constituted a breach of duty, and that he gave substantial assistance or encouragement to them in their acts.

Cecil v. Hardin, 575 S.W.2d 268, 272 (Tenn.1978) citing Restatement (Second) of Torts § 876(b) (1965). Accordingly, civil liability for aiding and abetting requires affirmative conduct. Failure to act or mere presence during the commission of a tort is insufficient for tort accomplice liability.

We shall now examine the elements of employer or principal liability for violations of the THRA. There are three general classifications of sexual harassment: (1) hostile work environment created by non-supervisory employees or co-workers; (2) quid pro quo harassment; and (3) hostile work environment created by supervisory employees.

CO-WORKER HARASSMENT

An employer's liability for a hostile work environment created by non-supervisory employees (co-workers) is based on a theory of negligence and not respondeat superior. To prevail on a claim of co-worker harassment, a plaintiff must assert and prove:

(1) the employee was a member of a protected class; (2) the employee was subjected to unwelcomed sexual harassment; (3) the harassment occurred because of the employee's gender; (4) the harassment affected a "term, condition or privilege" of employment; and (5) the employer knew or should have known of the harassment and failed to respond with prompt and appropriate corrective action.

Spicer v. Beaman Bottling Co., 937 S.W.2d 884, 888 (Tenn.1996). An employer, therefore, is liable for the conduct of non-supervisory employees only as a by-product of its reaction to the employee's conduct and not as a direct result of the actual conduct. Accordingly, § 4-21-401 liability under a co-worker harassment theory is premised on the employer's reaction and not on the co-worker's harassing conduct.

A non-supervisory employee who engages in discriminatory conduct does not, merely by that conduct, aid and abet the employer's failure to take remedial action. A non-supervisor neither has a role in the employer's reaction nor shares a common intent or purpose with the employer who simply fails to respond to the discriminatory conduct. Permitting suits against non-supervisors for their harassing...