Individual Liability of Social Work Supervisors
Supervisors are often named as defendants in lawsuits even though they have no direct involvement in the event itself. Individuals alleging discrimination or other wrongful behavior in the workplace frequently sue both the agency and their supervisors. Such allegations may be made because plaintiffs seek to impute the supervisors’ actions to the agency. Notwithstanding such allegations, claims may also be made against supervisors in their individual capacities.
Some state and federal laws prohibit plaintiffs from suing their supervisor in their individual capacity. In other circumstances, personal liability is a realistic result. For instance, there are numerous federal statutes barring discrimination and other wrongful actions against individuals in the employment context: the Americans with Disabilities Act of 1990 (“ADA”); Title VII of the Civil Rights Act of 1964 (“Title VII”); the Age Discrimination in Employment Act of 1967 (“ADEA”); the Fair Labor Standards Act of 1938 (the “FLSA”); and the Family Medical Leave Act of 1993 (the “FMLA”).
Each state has similar legislation – and this just covers the area of employment discrimination! Other statues address defamation (slander and libel), intentional infliction of emotional distress, and intentional interference with contractual relations.
A number of federal and state courts have held that certain conduct will support claims against human services defendants in their individual capacity. However, they have struggled, and differ, over the exact parameters of the covered conduct. Still very much undecided is the nature of action or inaction which will form a basis for such liability. Some of these decisions have explored the exact reach of the statute, while others have merely decided the matter with little or no discussion.
Consequently, you should take appropriate steps to protect yourself from personal liability and to help your fellow supervisors in your agency do the same.
No matter how careful you are lawsuits can be brought against even the most vigilant supervisor. There are certain steps to avoid or limit your liability. Of prime importance is to understand the different kinds of claims that can be brought, and avoid behavior which may be fertile ground for filing a lawsuit. You don’t have to spend thousands of dollars to take the following preventive measures:
1. Listen to your conscience. Be mindful of your own actions and those of your supervisees. Even if you are personally blameless in a moral sense, your oversight of what occurs around you and under your supervision may, at a future time, be alleged as the basis for your liability.
2. Adhere to your policies. Do you need clarifications or interpretations of your agency’s policies? Do you in fact have a policy manual? The failure to have written policies is an open invitation to the allegation that no policy existed or that the policy was different than you claim. You may need to approach your supervisor or counsel to confirm or even formulate written policy on important matters.
3. Stay updated. State and federal laws change daily. Policies that were legal or “best practice” one month may later subject you to claims of personal liability.
4. Consult with your supervisor, agency attorney, and colleagues. Doing so will confirm that you did not act in a unilateral, impulsive way.
5. Keep records. As a supervisor, you should keep written documentation pertaining to all major decisions and the reasons for those actions. In the event a lawsuit is initiated, it may not be resolved for years. Consequently, you may need to refer back to these records. Make sure your documents are detailed and complete.
6. Stay cool. If you are sued, immediately seek legal counsel. This person may not be the same as the counsel for the agency. Continue to communicate with your counsel after your initial contacts. Update your attorney on developments as they occur.
There are many potential defenses to individual liability. Among others, they include:
Contributory Negligence — this is where you can show that the plaintiff was also negligent, and contributed to their own injury or damage.
Comparative Negligence — this is when the court decides on a percentage split (say 60-40) in terms of who is negligent. This defense tends to mitigate, or reduce the size of the monetary award.
Assumption of Risk — this is when the court decides that the plaintiff engaged in behaviors that assumed the risk of damages or injuries, and cannot expect to sue the human service agency to recover.
Good faith, Absolute or Qualified Immunity — this is a defense covering duties of a discretionary nature.
In human services, the doctrine of individual liability is clearly expanding in some jurisdictions. It’s still an exclusive club, but you don’t want to become a member!
This commentary originally appeared in Policy & Practice,
(September, 2005), 63 (3), 26.
Guest commentary by
Daniel Pollack, MSW, JD
Professor at Yeshiva University’s School of Social Work in NYC and
Senior Fellow, Center for Adoption Research,
University of Massachusetts Medical School
Dan can be contacted at (212) 960-0836.