# FILED
October 27, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT NASHVILLE

FOR PUBLICA

TION Filed: October 27, 1997 KELLY CARR, ) United States District Court ) Middle District of Tennessee PLAINTIFF/R ESPONDENT, ) Nashville Divi sion ) No. 3-94-0095 v. ) ) Hon. Robert L. Echols UNITED PARCEL SERVICE, ET AL ., ) United States Di strict Judge ) DEFENDANT/PETITIONERS. ) No. 01S01-9605-FD-00090

FOR PLAINTIFF: FOR DEFENDANTS: Deanna C. Bell Charles Hampton White Nashville Rebecca Wells Demaree Nashville FOR AMICUS CURIAE, TENNESSEE MUNICIPAL FOR AMICUS CURIAE, LEAGUE RISK

MANAGEMEN T, JOYCE M. GRIMES: ET AL. : Joyce M. Grimes Pamela Lynn Reeves Nashville Knoxville

HOLDER, J.1 The record in this case cons ists only of the Order Certifying Question to the Supreme Court of Tennessee. 2 OPINION
This case comes to us on a certified question of law. The plaintif f, Kelly Carr, filed a sexual har assment action in the United St ates District Court for the Middle District of Tennessee alleging viola tions of both Title VII of the Civ il Rights Act of 1964 ("Title VII") and the Tenness ee Human Rights Act ("THR A"). She named as defendants her employer, Un ited Parcel Service ("UPS"), and three UPS employees, Ron Foster, Martin Sisk, and Andrew Martin. Foster, Sis k, and Martin filed a motion for judg ment on the pleadings argui ng that they could not be held individually liable under either Title VII or the THRA. The district court entered an order requesting this Court “to resolve the issue of whether a defendant can be held individuall y liable under THRA." We accepted certification of the question. We hold that, under the facts as certified to us, the THRA does not impose indivi dual liability in this case.

BACKGROUND
Plaintiff alleges that she w as physically and v

erbally sexually

harassed by Foster during her employ ment with UPS. Plaintiff maintains that on or about January 29, 1993, Foster rubbed her posterior and stated "I just rubb ed Kelly's ass. I hope she does not file harassment charges." Plaintif f contends that Sisk, a supervisor, witnessed the January incid ent and failed to take remedial acti on. Plaintiff apparently alleges several other instances of sexually offen sive conduct involving the defendants either directly or

indirectly. The allegations are not specified in the record. 1 The record before us is also devoid of specific allegations of sexual har assment against Martin.3 EMPLOYMENT-RELA TED DISCRIMINA

TION
The THRA is a comprehensive a nti-discrimination stat ute that is codified at Tenn. Code Ann. § 4-21-101 to -905 (Repl. 1991 & Supp. 1996). Tenness ee Code Annotated § 4-21-401 prohibits employment-related discrimination and provides in pertinent pa rt:

It is a discriminator

y practice for an employ er to: (1) Fail or refuse to hire or discharge any person or otherwise t

o discriminate against an individual with r espect to compensation, terms, conditions or privileges of employment because of such individual's race, creed color, religio n, sex, age or national origin;
Tenn. Code Ann. 4-21-401(a). The THR A defines "employer" to include:
. . . the state, or any pol itical or civil subdivision thereof, and persons employing eig ht (8) or more persons w ithin the state, or any perso n acting a s an agent of an em ployer, di rectly or in directly;
Tenn. Code Ann. § 4-21-102(4) (S upp. 1996). Our initial i nquiry is wheth er the legislature intended to i mpose individual liabil ity by defining employ er to include "any person acting as an agent of an employer."
Although the language of Titl e VII and the THRA differ slight ly, it is clear that the legislature int

ended the THRA to be coextensive with federal law. Bennett v. Steiner-Liff Iron and Metal Co ., 826 S.W.2d 119, 121 (Tenn. 1992) (citing Tenn. Code Ann. § 4- 21-101(a)(1) (1991 Repl. ) (stating purpose and intent of general assembly was to “provide for e xecution of the policies embodi ed in the federal Civil R ights Acts of 1964, 1968 and 1972, . . .”)). We, therefore, may look to federal interpre tation o f Title V II for gui dance in enforci ng our own anti-discrimination sta

tute. We, however, are neither bound by nor limited by federal law when inter

preting the THRA.2 We note that the feder al courts' use of the ter

m respondeat superior

has created consider able con fusion. As discuss ed later i n this opi nion, de rivative liability princi ples are applicable only in quid pro quo harass ment cases. The federal courts, however, have held that the "any ag ent" provision created respondeat superior liabi lity. Accordingl y, the federal courts hav e continued to incorrect ly employ

the term respondeat superior as an element in hostile work environment cases wher e the liability is actually based on negli gence. See Fleenor v. Hewit

t Soap Co. , 81 F.3d 48, 50 (6th Cir. 1996) (noting term respondeat superior

"is an incorrect label for co-worker harassment cases"). The federal courts have recognized this fallacy and redefined the term respondeat superior

for purposes of Title VII analy sis. To establish respondeat superior in hostile w

ork environment cases "the plaintiff must prove 'that the employer , through its agents or supervis ory person nel, knew o r should h ave known of the charged sex ual harassment and failed to implement prompt and appropriate correctiv

e action.'" Kauffman v. Allied Signal, Inc. , 970 F.2d 178, 183 (6th Cir. 1992). 4 Title VII defines employer as including "any agent" of the employer. The majority of the federal circ uits addressing this i ssue have held that the "any agent" provision incor

porates respondeat superior liability 2 and does not impose individual liabili

ty. Dici v. Pennsylvania , 91 F.3d 542, 552 (3d Cir. 1996); Tomka v. Seiler Corp. , 66 F.3d 1295, 1312 (2d Cir. 1 995); Greenlaw v. Garre tt , 59 F.3d 994, 1001 (9th Cir. 1995), cert

. denied , 117 S.Ct. 110, 136 L.Ed.2d 63 (1996); Gary v. Long , 59 F.3d 1391, 1400 (D.C. Ci r. 1995); EEOC v. AIC Security Investigations , 55 F.3d 1276, 1281 (7th Cir. 1995); Lenhardt v. Basic Inst. of Tech. , 55 F.3d 377, 381 (8th Cir. 1995); Grant v. Lone Star Co. , 21 F.3d 649, 652 (5th Cir. 1994); Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993); Miller v. Maxwell's Int'l, Inc. , 991 F.2d 583, 587 (9th Cir. 1993); Busby v. City of Orlando , 931 F.2d 764, 772 (11th Cir. 1991) (per curiam). These circuits have reasoned that indiv idual liability i s inconsistent with Title VII's original remedy provision and its exemption for small businesses.

The THRA 's defin ition of employer is ambiguo us and su sceptibl e to two reasonable interpretations. Plaintiff urges that every supervisor is an "employer" for purposes of the THRA. Under this construction, supervisors may be held individually li able for violations of the THR A. A second construction i s that an3 See generallyR ESTATEMEN T (S ECOND ) OF T ORTS § 320 (1977). See also Janken v. Hughes , 53 Cal. Rptr. 2d 741 (Cal Ct. App. 1996) (holding supervisors exercising proper

ly delegated management author ity not individual ly liable even if decisions were later found to be discriminatory). 5 employer is vicar

iously liable for its

supervisory employ

ees' quid pro quo violations of the THRA.
We find the vicarious liability construction more compelli ng for the following reasons: ( 1) the construction is c onsistent with the THRA' s exemption for small businesses; (2) agents are generally not individually liable for acts undertaken on behalf of a disclosed pr incipal that are with in the legitimate scope of the d elegated managem ent auth ority; 3 and (3) the construction is consistent with the federal courts' interpretation of Title VII. The s light deviation of the THRA's definition of employer fr om Title VII's definition does not warrant an interpretation that woul d be inconsistent with Title VII. We agree with the federal courts' analyses and hol d that the THRA's "agent of an employ er" language does not impo se individ ual liabi lity.
Our inquiry, however, does not end with this conclusion as the THRA is broader than Title VII in ter ms of who may be held liable for harassment and discrimination. The THRA i s applicable to entities empl oying fewer employ ees than that required by Title VII. See Tenn. Code Ann. § 4-21-102(4) ( defining employer to include perso ns employing eight or more persons); but see 42 U.S.C. § 2000e(b) (defining employer as person employing fifteen or m ore employees). Moreover, the THRA provides that:
[i]t is a discriminatory practice for a person or for two (2) or more persons to:

. . . (2) Aid, abet, incite, c

ompel or command a person to engag e in any of the acts or practices decl ared discriminatory by this chapter;6 Tenn. Code Ann. § 4-21-301(2) (1991 Repl.). A "person" is defin ed as "one (1) or more individuals, governments, governmental agencies, public authorities, labor organizations, corporations, legal representatives, partnerships, associations, . . unincor porated organizations or other organized per sons." Tenn. Code Ann. § 4-21-102(14). Ac cordingly, we fin d that an individual w ho aids, abets, incites, compels, or commands an emp loyer to engage in employment-related discr imination has violated the THRA.

Because Tenn. Co de Ann. § 4-21-301 (a)(2) cre ates acco mplice li ability, we must analyze the e lements of accomplice liabili ty to determine how an individual employee mi ght aid and abet an employer in violating the THR A. The THRA does not provide a definition of "aiding and abetting." The common law civil liabilit

y theory of aiding and abetting required that:
the defendant knew that his companion s' conduct constituted a breach of duty, and that he gav e substantial assistance or encouragement to them in their acts.

Cecil v. Hardin , 575 S.W.2d 268, 27 2 (Tenn. 1978) citing Restatement (Second) of Torts § 876(b) (1965). Accor dingly, civil

liability for aiding

and abetting requires affirmative condu ct. Failure to act or mer e presence during the commiss ion of a t ort is insu fficie nt for to rt accomp lice liabi lity.
We shall now examine the elements of employ er or principal liabi lity for violations of the THRA. There are three general clas sifications of sexual harassment: (1) hostile work environment created by non-supervisory employees or co-workers; (2) quid pro quo harassment; and (3) hostile work environment created by supervisory employees.7 CO-WORKER HARASSMENT
An employer's liabili

ty for a hostile wor

k environment created bynonsupervisory employ

ees (co-workers)

is based on a theory of negl igence and not respond eat supe rior. T o preva il on a claim of c o-wor ker har assment , a plai ntiff must assert and prove:
(1) the employee was a member of a protected class; (2) the employee was subjected to unwelcomed sexual harassment; (3) the harassment occurred because of the em ployee's gender; (4) the harassment affected a "term, condition or privilege" of employment; and (5) the employ er knew or should hav

e known of the harassment and failed to respond w ith prompt and appropriate corrective action.
Spicer v. Beaman Bottling Co. , 937 S.W.2d 884, 888 (Tenn. 1996). An employer, therefore, is liable for the conduct of no n-supervisory employees only as a by-product of its reaction to the employee's conduct and not as a direct result of the actual conduct. Ac cordingly, § 4-21-

401 liability under a c

o-worker harassment theory is pre mised on the employer's reaction and not on the coworker's harassing

conduct.
A non-supervisory employee who engages in discriminatory c onduct does not, merely by that conduc t, aid and abet the employer's failure to take remedial action. A non-supervis or neither has a role in the employer's reaction nor shares a common intent or purpose wi th the employer who si mply fails to respond to the discriminatory conduct. Permitting suits against non-supervisors for their harassing conduct, under an aiding and abetting theory, also serves little remedial purpose. If an employer responds promptly and appro priately to the harassment, the THRA has not been violated. If the e mployer fails to take appropriate correctiv

e actions, the employer is liable. Accordingl

y, § 4-21-4014 A victim's cause of action against individual co-workers for sexually harassing conduct may lie in other tort theories. 8 does not redress a co-w orker's harassing c

onduct. 4 Section 4-21-401 merely provides a remedy for the employer's failure to take corrective action i n a coworker harassment case.
Individual accomplice liability under a hostile work environment theory requires conduct that is distinct from the harassment. To i mpose individual accomplice liability

on a non-supervisory

employee, a court must find:
(1) that a hostile wo rk environment exis ted; (2) that the employee acted affirmatively to aid, abet, incite, compel, or command an employer not to take remedial action to the hostile work env

ironment; and (3) that the employer engaged in employment-related discrimination by faili ng to take adequate remedial action.
Although a non-supervis or will rarely

possess the ability t

o prevent an employer from taking remedial action, the non-supervisor should be liable fo r conduct which encourages or prevents an employer from t aking remedial action.
Plaintiff's claims against Foster are predicated on hostile work environment. There is no ev idence in the record before us that Foster had any superviso ry authori ty over the p laintif f or enco uraged UP S not to ta ke correct ive action. Under the facts as cer tified, Foster cannot be held i ndividually liabl e for aiding and abetting an employ er violation of the THRA.9 SUPERVISOR HARASSMENT
Cases involving co-worker harassment are relatively simple. The more difficult issues arise w

hen the harasser is a superv isor. There are two g eneral classifications of superv isor harassment: (1) th e "quid pro quo" theory of sexual harassment; and (2) the hostile work environment created by a supervisor.

Quid Pro Quo
Quid pro quo harassment occur s when a supervisor

conditions employm ent bene fits on " sexual fa vors." To prevail un der a quid p ro quo the ory, plaintiff must show:
(1) that the employee w as a member of a protected class; ( 2) that the employee was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual fav ors; (3) that the harassment complained of was based on sex; (4) that the employee's submission to th e unwelcome advances w as an express or implied cond ition for receiving job benefits or that the employee's refusal to submit t o the supervisor's demands resulted in a tangible job detriment ; and (5) the existence of respondeat superior liability.
Kauffman v. Allied Signal, Inc. , 970 F.2d 178, 186 (6th Cir. 1992).
The employer is strictl

y liable for a superv

isor's quid pro quo

harassment under the doctrine of respondeat supe rior. Strict liabi lity is imposed based on the theory that: (1) a supervisor is the alter ego of the employer; and (2) a supervisor has the actua l or apparent authority to alter an employee's ter ms or conditions of employment. Under this alter ego theory of liability, the supervisor's acts within the scope of employment are imputed to the em ployer.5 Although not reflected in the r ecord, Ms. Carr's br

ief does allege that the "defendants" refused to transf er her "so that she could get away from Mr. Foster." The record, however, does not allege that the transfer decisions were continent upon receipt of "sexual favors."
6 See St. Peter v. Ampak-Division of Gatewood Products, Inc. , 484 S.E.2d 481 (W. Va. 1997) (permitting indi vidual liability

); Schram v. Albertson's, Inc. , 934 P.2d 483 (Or. Ct. App. 1997) (stating supervisors could be individually liable for aiding and abetting employment discrimination under stat e statute); Tyson v. Cigna Cor

p. , 918 F.Supp 836 (D. N.J. 1996) (finding supervisory employees may be held liab le in individual capac ity under state statute) ; Conway v. City of Hartford , 9 N.D.L.R. P 167 (Conn. S uper. Ct. 1997); Johnson v. Canadian Pacific Ltd. , 522 N.W.2d 386 (Minn. Ct. App. 19 94) rev'd on other grounds , 536 N.W.2d 319 (Minn. 1995); Dupus v. Con-test, Inc. , 4 Mass. L. Rptr. 165 (Mass. Super. Ct. 1995) (holding members of "upper management " may be liable as aiders and abettors). 10 The record as certified provides no allegation that either Martin or Sisk utilized their actual

or apparent authority to obtain "sexual favors." 5 We find that the plaintiff's claims agains t both Martin and Sisk are properly classified a

s supervisors failing to prevent the misconduct of a subordinate. The mere failure to act, however, does n ot constitute the givi ng of "substantial assistance or encouragement." Accordingly, neither Sisk nor Martin can be held individually liable, as aiders and abetters, on the facts presently befo re us.
Although the facts as certified do not support a finding of quid pro quo harassment, we acknowl edge that several state anti-discrimination sta tutes containing aiding and abetting provisions have been interpreted to impose individual liabili

ty on supervisors for quid pro quo harassment. 6 We will r eserve discussion of supervisor liability for quid pro quo discrimination under the THRA for a case in which the i ssue is squarely pr esented.
Supervisor Created H ostile Work Environment
Supervisor created hostile work environment cases differ from quid pro quo harassment in that the supervisor does not use or attempt to use supervisory author

ity to obtain sexual favors from an employee. The super visor11 merely creates a hostil e work environment i n the same manner as an employee with no supervisory authority. Whether the employer is liable for its supervisor's actions in hostile wor

k environment claims depends on: "(1) whether the supervisor's harass ing actions were fores eeable or fell within the scope of employment; and (2) even i f they were, whether

the employer responded adequately and effectively to negate liability ." Pierce v. Commonwealth Life Ins. Co. , 40 F.3d 796, 803 (6th Cir. 1994). Accordingly, the employer's liability is predicated on its reaction to the discriminatory conduct.
We hold that, for purposes of deciding accomplic e liability, a clai m of superviso r created ho

stile wor k environm ent should be subject to the same analysis as a claim of a c o-worker harassment. Generally, the superv isor and the employer do not share a c ommunity of purpose when the emplo yer fails to respond appropriately to the supervisor's harassing conduct. A supervisor, however, may be indi

vidually liable for encouraging or prev enting the employer from taking corrective action. Absent such allegations, neither Martin nor Sisk can be he ld individ ually liab le under a hostile wo rk environ ment the ory.

CONCLUSION

Based on the limited facts certified to this Court, we hold that the se defendants cannot be held individu ally liable under the Tennes see Human Rights Act as an employ er under Tenn. Code Ann. § 4-21-401 or for aiding and abetting an employer's v iolation of § 4-21-401.12 The clerk will transmit a copy of this opinion in accordance with Tenn. R. Supr. C t., Rul e 23(8).The cost s in thi s court

will be taxed to the p lainti ff.

Janice M. Holder, Justice Concurring: Anderson, C.J. Drowota, Reid, and Birch, J.J.