In the case of Hauser v. Dayton Police Department, the Supreme Court concluded that a “supervisor” or other employee is not always considered an “employer” for discrimination purposes and therefore does not always have personal liability for discriminatory acts. (The ruling does not affect the vicarious liability of public employers for their employees' actions.)

However, the ruling indicates, an individual public employee could still face liability under other sections of Ohio's anti-discrimination laws (i.e., retaliation, aiding and abetting) that expressly impose liability.

For public employers responding to allegations of employment discrimination by their employees and/or supervisors, the following three issues should be reviewed closely in conjunction with the recent Supreme Court decision.

Status of the defendant agent/employee

A public employer defending against such a claim must determine:

• If the individual defendant is in a supervisory role.
• Whether, based on the Hauser ruling, the alleged misconduct is excluded from liability under the anti-discrimination exemptions or whether personal liability is expressly imposed.

It is still possible that an employee will face liability under other provisions of Ohio's anti-discrimination statute, even if a claim can be pursued separately against the public employer.

Course and scope of employment

The public employer should, through investigation and documentation, determine whether or not the employee's alleged acts of discrimination occurred within the course and scope of the employee's employment or official responsibilities.

This may remove liability for the public employer as to vicarious liability, but may not eliminate potential liability for the employee/supervisor.

Insurance coverage

Finally, the public employer should also review whether employee/supervisor liability claims – especially with allegations of intentional misconduct such as discrimination – are covered under the public employer's liability or other insurance policy coverages.

Certain allegations may not be covered for insurance claims defense purposes either as a matter of law (state or federal) or the insurance company's particular interpretation of its policies.

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Neil D. Schor is a lawyer with Harrington, Hoppe & Mitchell, Ltd. He can be reached at nschor@hhmlaw.com or at (330) 744-1111.