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What happens when an employee believes he or she is a victim of discrimination at work? Most people understand that an employee can sue their employer/company but very few understand the concept of individual liability under anti-discrimination laws. This article will address individual liability under anti-discrimination laws in Pennsylvania as it relates to employment and will discuss the different ways individuals may be held liable for their actions or for the actions of others.

Federal law provides most of the well-known anti-discrimination laws: Title VII of the Civil Rights Act of 1964 (“Title VII”); the Americans with Disabilities Act (“ADA”); and the Age Discrimination in Employment Act (“ADEA”). These federal laws prohibit employers from discriminating against an employee of the basis of a protected characteristic [race, sex, age, disability, etc.]. While these federal laws offer employee-plaintiffs a right to recover, they generally do not extend liability to individual employees of the corporate employer.

Pennsylvania, on the other hand, provides its own source of liability–on top of the federal protections mentioned above–that could make individual employees liable as defendants, alongside their employer. For instance, the Pennsylvania Human Relations Act (“PHRA”) prohibits discrimination on the basis of race, sex, national origin, and disability, similar to Title VII and the ADA, but it also extends liability to individuals. The PHRA has specific provisions that make individuals liable for discrimination and discriminatory practices. Section 955(e) of the PHRA prohibit “any person, employer, employment agency, labor organization, or employee to aid, abet, incite, compel, or coerce the doing of any act declared by this section to be an unlawful discriminatory practice . . . .” 43 Pa. Cons. Stat. Ann. § 955€.

Following its state counterpart, the Pittsburgh City Code (“City Code”) prohibits an employer from taking any discriminatory action against an employee on the basis of the employee’s protected class. The City Code goes on to prohibit “any person, whether or not an employer, employment agency, or labor organization, to aid, incite, compel, or coerce or participate in the doing of any act declared to be an unlawful employment practice by this Article. . . . ” § 659.02(j). Similarly, the Allegheny County Ordinance Human Relations Commission (“County Ordinance”) prohibits unlawful employment practices due to an employee’s protected characteristics. § 215-32(4) provides that it is unlawful for “any person, employer, employment agency, or labor organization . . . to aid, abet, incite, compel, or coerce the doing of any act declared by this section to be an unlawful discriminatory practice . . . .”  

Now that we know Pennsylvania provides for individual liability in the employment discrimination context,[1] when can an individual become liable for employment discrimination? At least for the three laws identified above [PHRA, City Code, and the County Ordinance], individuals can be held liable when they either “act in a supervisory role,” and therefore “share the discriminatory purpose and intent of the employer[2],” are the one doing the discriminating, or for “fail[ing] to take action to prevent further discrimination by an employee under[their] supervision.”[3]

Individual liability may[4] extend to individuals who have a supervisory role over an employee. In Glickstein v. Neshaminy Sch. Dist[5]., the plaintiff was allowed to bring individual liability claims under the PHRA against eight of her supervisors because she alleged that she reported sexual harassment to those supervisors, yet none took any corrective action to stop the discrimination and then subsequently retaliated against her for pursuing her complaints.

In sum, individual liability is an often-overlooked issue in the field of employment law. As with many EEO compliance programs, the best defense is to ensure you have appropriate policies in place preventing discrimination and are following best practices for reporting and investigating any employee concerns.  

[1] Individual liability can also exist in connection with certain types of wage and hour claims.

[2] Brzozowski v. Pa. Tpk. Comm’, 165 F. Supp. 3d 251, 263 (E.D. Pa. 2016).

[3] Davis v. Levy, Angstreich, Finney, Baldante, Rubenstein & Coren, P.C., 20 F. Supp. 2d 885, 887 (E.D. Pa. 1998).

[4] Liability under the PHRA, the City Code, and the County Ordinance are not automatic, and will require the plaintiff to plead and establish certain facts and legal elements, however, it is prudent for employers to understand the landscape of these laws and be proactive about combating potential claims. 

[5] 1997 U.S. Dist. LEXIS 16317 (E.D. Pa. Oct. 15, 1997).

February 20, 2024

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