Recently in Walsh v. Nevada Department of Human Resources, Division of Healthcare, Finance and Policy, et al. (No. 04-17440) the Ninth Circuit Court of Appeals ruled that individuals cannot be personally liable for damages in discrimination suits brought pursuant to Title I of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12117. Prior to the Walsh decision, the Ninth Circuit had never addressed the issue of personal liability under Title I of the ADA. In Walsh, the Ninth Circuit reasoned that Congress did not intend to allow individuals to be personally liable for discrimination under Title I of the ADA because the statute expressly limits liability to employers with 15 or more workers. Previously, other Circuit Courts had reached similar conclusions.
In California, individuals are also not subject to personal liability for discrimination, but it is important to remember that individuals can be held personally liable for harassment, including harassment based on a disability. For example, an individual will not be held personally liable for his/her employer’s discriminatory hiring practices, even where that individual plays a part in the hiring process. However, an individual may be personally liable for harassment where he/she harasses a subordinate or other coworker based on a disability for personal gratification, because of meanness or bigotry, or for other personal motives.
Because employers can be subject to liability for both unlawful discrimination and harassment, employers are encouraged to develop and implement strong policies prohibiting discrimination and harassment in the workplace, provide training to employees focused on preventing discrimination and harassment in the workplace, and respond immediately and appropriately to complaints raising allegations of discrimination or harassment in the workplace.