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By Joanne Deschenaux

An individual supervisor can be held liable under state nondiscrimination laws for workplace retaliation, even though he or she cannot be held personally responsible under state law for other types of employment discrimination, the Arkansas Supreme Court ruled Nov. 11, 2010, answering a question certified by an Arkansas federal court (Calaway v. Practice Mgmt. Servs. Inc., No. 10-105).

The court noted that the discrimination and retaliation provisions of the Arkansas Civil Rights Act (ACRA) are worded differently. The ACRA's discrimination provision (Ark. Code § 16-123-107(c)(1)(A)) uses the term “employers” while its retaliation provision, Section 16-123-108(a), refers more broadly to “person,” the court told the U.S. District Court for the Eastern District of Arkansas.

And, although “person” is not defined, the rules of statutory construction require that the word be interpreted according to its plain meaning, the court said. “Black's Law Dictionary defines ‘person' as a ‘human being,' or an ‘entity (such as a corporation) that is recognized by law as having the rights and duties of a human being,' ” it noted.

“Therefore, we hold that the anti-retaliation provision of the ACRA prohibits discrimination by a human being or an entity that is recognized by a law as having the rights and duties of a human being,” the court wrote. “Accordingly, an individual supervisor can be held personally liable for alleged acts of retaliation prohibited under Arkansas Code Annotated section 16-123-108(a).”

The decision came in a case filed by Rhonda Calaway against Practice Management Services Inc. and Dr. Richard Johns. She claimed that Johns sexually harassed her while she was working as a nurse at PMS and fired her when he found out that she had complained about the harassment to an office manager.

Federal anti-discrimination laws, such as Title VII, the Age Discrimination in Employment Act and the Americans with Disabilities Act do not allow individuals to be held personally liable.

Joanne Deschenaux, J.D., is SHRM’s senior legal editor.

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