Under Ohio law, supervisory personnel have substantial personal exposure for Chapter 4112 discrimination claims arising from their own discriminatory conduct – exposure that generally does not exist under federal law. Thus, a claimant’s election to assert federal or state law claims, or both, impacts not only jurisdictional issues, but also the potential parties to the case. In cases asserting Chapter 4112 liability, employers and their management must be aware of the potential for supervisor liability imposed by Ohio law, and must therefore evaluate the alleged discriminator’s relationship with the claimant. But how so? Until recently, it could be difficult to determine whether the alleged discriminator was indeed the plaintiff’s supervisor, as opposed to someone with merely a general supervisory role. However, by grafting the United States Supreme Court’s definition of “supervisor” established in Vance v. Ball State Univ., -- U.S. --, 133 S. Ct. 2434, (2013) into the analysis, there is a reasonably-reliable framework for evaluating this issue. Indeed, some courts have already begun to do so.
The Individual Liability Distinction Between Title VII and Chapter 4112
While federal case law applying Title VII of the Civil Rights Act of 1964 (Section 2000e et seq., Title 42, U.S. Code) has been held to be generally applicable to cases arising under Ohio’s anti-discrimination statutes (see Ohio Civil Rights Comm'n v. David Richard Ingram, D.C., 69 Ohio St. 3d 89, 93, 630 N.E.2d 669 (Ohio 1994)), Ohio law deviates from its federal counterpart in a very meaningful way. The Ohio Supreme Court has held that individuals may be liable for their own discriminatory conduct if they were the plaintiff’s supervisor or manager. Genaro v. Cent. Transp., 84 Ohio St. 3d 293, 300, 702 N.E.2d 782 (Ohio 1999). Such individual liability is generally precluded in Title VII cases. See Wathen v. GE, 115 F.3d 400, 405 (6th Cir. 1997).
However, while the Genaro court held that supervisors could be liable for their own discriminatory conduct, it did not define who a “supervisor” is for purposes of imposing individual liability. And in the years since Genaro created this departure from federal law, courts have rarely addressed whether the individually-named defendant was indeed the plaintiff’s supervisor. Many times, the litigants and the court assume, without analysis, that the individual whose conduct is challenged either was, or was not, the employee’s supervisor. This can lead to several issues from the employer’s standpoint, sometimes requiring the employer (or its insurer) to provide a costly defense to a person who may not be a legitimate target.
While Genaro interpreted Chapter 4112 to impose personal supervisor liability, a person is not liable merely because they are a supervisor – they must be the plaintiff’s supervisor. Therefore, both employers and individuals that find themselves the target of a discrimination claim alleging a violation of Ohio law should evaluate whether the accuser’s allegations relate to the conduct of a supervisor or similarly-situated individual, and whether that person is/was the plaintiff’s supervisor.
Carrying the Vance Supervisor Analysis Over to Chapter 4112
Ohio law provides little guidance to employers on the issue of who qualifies as the plaintiff’s supervisor for purposes of individual Chapter 4112 liability. However, some courts have begun to adopt the analysis articulated by the United States Supreme Court in Vance when determining who is a supervisor in this context. In Vance, the U.S. Supreme Court held that in cases arising under Title VII, a supervisor is someone that has been empowered by the employer to take “tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a substantial change in benefits.” Id. at 2443. While a potentially relevant factor, “[t]he ability to direct another employee’s tasks is simply not sufficient,” by itself, to make someone a supervisor. Id. at 2448.
At least two federal courts have carried the Vance definition of “supervisor” forward into their analysis of Ohio’s discrimination statutes, and in particular, the analysis of individual liability for discriminatory conduct under Genaro. In Braun v. Ultimate Jetcharters, Inc., No. 5:12-CV-01635, 2013 WL 3873238 (N.D. Ohio July 25, 2013), the district court cited Vance when analyzing whether an individual defendant was a “supervisor” and thus exposed to personal liability for his alleged harassment of a subordinate. Applying Vance’s definition of “supervisor,” the court dismissed claims against two individual defendants where the plaintiff admitted she reported to another person higher up the organizational chart and where there was no evidence either defendant had authority to directly impact the plaintiff’s termination. The district court found that because the individuals were not “supervisors” under Vance, and because Title VII cases are generally applicable to Chapter 4112 cases, the individuals could not be personally liable for their alleged Chapter 4112 violations under Genaro.
Similarly, in Ault v. Oberlin College, No. 1:13-CV-00176, 2014 U.S. Dist. LEXIS 119540 (N.D. Ohio Aug. 26, 2014) (aff’d in relevant part and reversed in part by 620 Fed. Appx. 395 (6th Cir. 2015)), the district court applied Vance and held that a lack of evidence that an individual defendant could control the terms and conditions of the plaintiffs’ employment required dismissal of claims asserting personal liability against the defendant. The district court noted the individual defendant had no authority to hire, fire, or discipline the plaintiffs. Nor could the defendant modify the plaintiffs’ work assignments or rates of pay.
As a practical matter, the issue of whether the alleged violator was the plaintiff’s supervisor will frequently be addressed in other contexts of a Chapter 4112 case, as it can impact whether the employer is strictly liable for its employee’s conduct, or whether the plaintiff must prove the employer was negligent in responding to the claim of discrimination. However, the issue of individual liability must be closely scrutinized, as it provides a potential avenue for plaintiffs to gain leverage over employer defendants. It also potentially gives rise to additional defense costs, and may impact the employer’s insurance coverage and insurability.
The Vance decision also presents a valuable procedural opportunity to dispose of cases or individual claims prior to proceeding with expensive and time-consuming trials and post-trial proceedings. This is so because the Vance decision twice noted that its “supervisor” definition could be “readily applied” so that disputes involving supervisor status can “very often be resolved as a matter of law before trial” and “generally will be capable of resolution at summary judgment.” Therefore, it is important to identify this issue at the outset of any dispute so that a defense strategy centered on gathering facts necessary to evaluate this issue can be implemented with an eye towards avoiding costly and distracting litigation by moving for dismissal of these claims at summary judgment, if not earlier.