VT Court Finds Individuals Can be Liable for Workplace Discrimination

October 1, 2009 (PLANSPONSOR.com) - The Vermont Supreme Court has ruled that an individual supervisor can face charges of discrimination and retaliation under state employment law.

In its opinion, the court noted that Vermont’s Workers’ Compensation Act says “[n]o person shall discharge or discriminate against an employee . . . because such employee asserted a claim for benefits.” The court found no ambiguity in the meaning of “person” in the statute, and that the statute allows an employee to be sued as an individual – which it said is consistent with the state Legislature’s approach to personal liability for violation of the Vermont Fair Employment Practices Act. 

In overturning a superior court decision, the state’s high court said the legislative language choice straightforwardly applies the nondiscrimination provision to coworkers as well as to employers.  It pointed out that the Legislature used the term “employer” throughout the WCA to specify liability and responsibilities of employers for work-related injuries, so its decision to use the term “person” in the discrimination clause instead of “employer” marks a clear departure from its approach to employer-only liability in the rest of the WCA. 

The court ordered the case remanded back to the lower court for further proceedings.

Kimberley Payne was an employee of US Airways when she suffered a work-related back injury.  According to the court after learning of Payne’s injury, her supervisor did not observe WCA mandates when he failed to promptly investigate her complaint to determine whether compensation was due, forced her to use sick leave as compensation for the work days she missed while recovering from the back injury, interfered with her course of treatment, and then, after she requested WCA benefits, told her she could not receive any compensation retroactively. 

According to the record, the supervisor did not allow Payne worker’s compensation for missed work until she filed a claim with the Department of Labor, complaining of US Airways’ failure to compensate her through the WCA system. When she returned to work, she was on a limited work schedule to accommodate her recovery, but her supervisor called her physical therapist to request that the therapist approve longer work hours.  

In addition, the supervisor began to have individual meetings with Payne to criticize her performance, to take away some of her supervisory duties, and to consult about her – as he had not before – with the employees she was supposed to supervise.  Prior to these actions, the court said, Payne and her supervisor maintained a problem-free work relationship, and Payne’s employment record reflected only positive evaluations of her work. 

About a month after her written complaint to the company about the supervisor’s treatment of her, when she felt that the company was not responding appropriately, she filed a complaint for workplace discrimination against US Airways with the Vermont Attorney General. The Attorney General’s office in April 2002, agreed that Payne had been subject to discrimination for asserting a workers’ compensation claim.

The opinion is here .