but noting that allegations of "individualized personal misconduct" might support personal liability); Allen v. City of Yonkers, 803 F. Supp. 679, 683 (S.D.N.Y. 1992) (individuals may not be personally liable as agents under Title VII); Bridges v. Eastman Kodak Co., 800 F. Supp. 1172, 1180 (S.D.N.Y. 1992) (individuals may be personally liable as agents under Title VII); Elias v. Sitomer, 1992 U.S. Dist. LEXIS 18627, No. 91 Civ. 8010 (MBM), 1992 WL 370419, at *5 (S.D.N.Y. 1992) (individual may be personally liable as agent under the ADEA); Cheng v. Tams Consultants, Inc., 1991 U.S. Dist. LEXIS 6095, No. 90 Civ. 5832 (CSH), 1991 WL 79198, at *3 (S.D.N.Y. 1991) (supervisory personnel may be personally liable as agents under Title VII); Lehtinen v. Bill Communications, Inc. 1989 U.S. Dist. LEXIS 3707, 59 Fair Empl. Prac. Cas. (BNA) 1077, 1081 (S.D.N.Y. 1989) (individual who "participated in the decision making process" resulting in the alleged discrimination may be personally liable under Title VII); Bradley v. Consolidated Edison Co., 657 F. Supp. 197, 207 (S.D.N.Y. 1987) (employees acting within scope of their authority may not be personally liable under Title VII); Tuber v. Continental Grain Co., 36 Fair Empl. Prac. Cas. (BNA) 933, 937 (S.D.N.Y. 1984) (individuals who "controlled some aspect of [plaintiff's] conditions of employment" are employers under Title VII); Women in City Gov't United v. City of New York, 515 F. Supp. 295, 299 (S.D.N.Y. 1981) (trustees who approve retirement plan may not be personally liable under Title VII); Rodgers v. Grow-Kiewit Corp., 93 Lab. Cas. (CCH) P 13,431, at 20,541 (S.D.N.Y. 1981) (individual may not be personally liable as agent under the ADEA); Hannahs v. New York State Teachers' Retirement System, 2 E.B.C. 1642, 26 Fair Empl. Prac. Cas. (BNA) 527, 532 (S.D.N.Y. 1981) (individuals may not be personally liable under Title VII insofar as they act "pursuant to their official duties"); Bradley v. Rockland County Community Mental Health Ctr., 25 Fair Empl. Prac. Cas. (BNA) 225, 228 (S.D.N.Y. 1980) (individual may be personally liable as agent under Title VII if he "personally participated in the decision making process that forms the basis of the alleged discrimination"); Friend v. Union Dime Sav. Bank, 24 Fair Empl. Prac. Cas. (BNA) 1307, 1310 (S.D.N.Y. 1980) (individuals may not be personally liable as agents under ADEA).
Consideration of this issue must begin with the plain language of the statute, which is ordinarily dispositive. Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-254, 117 L. Ed. 2d 391, 112 S. Ct. 1146 (1992). However, "where the result of a literal interpretation of statutory language is absurd, or where the obvious purpose of the statute is thwarted by such slavish adherence to its terms, [the court] may look beyond the plain language" of the statute. Grand Light & Supply Co. v. Honeywell, Inc., 771 F.2d 672, 677 (2d Cir. 1985) (citations omitted). This is particularly appropriate where there is an alternative interpretation of the statute consistent with the legislative purpose. See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575, 73 L. Ed. 2d 973, 102 S. Ct. 3245 (1982). The plain language of the ADEA makes it unlawful for an "employer" to discriminate on the basis of age. In defining this term, the statute specifically exempts persons or entities who employ fewer than twenty employees. By further defining an "employer" to include liability for the conduct of persons acting as "agent[s]," the ADEA adopts the familiar doctrine of respondeat superior, under which a principal is liable for the tortious conduct of its agent. See Birkbeck, 30 F.3d at 510 (term "agent" incorporates doctrine of respondeat superior). The common law rule is that an employer may be liable for the intentional torts of its employees if they are committed within the scope of employment. See Shager v. Upjohn Co., 913 F.2d 398, 404-05 (7th Cir. 1990). This rule applies to the intentional tort of discriminatory discharge. See id. at 405 ("[A] supervisory employee who fires a subordinate is doing the kind of thing that he is authorized to do, and the wrongful intent with which he does it does not carry his behavior so far beyond the orbit of his responsibilities as to excuse the employer.") (citing Restatement (Second) of Agency § 228 (1957)).
The language of the statute suggests that agents might be liable for their conduct under the ADEA, particularly since under general principles of agency law, liability of a principal under the doctrine of respondeat superior does not extinguish the liability of a culpable agent. See Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 972 (2d Cir. 1987); Restatement (Second) of Agency, §§ 343, 359C(1), 217B(1) (1957). However, the ADEA does not expressly provide a cause of action against agents -- as noted above, the statute only makes it unlawful for an "employer" to discriminate on the basis of age. Although the statute defines an "employer" to include an "agent," treating an agent as subject to suit in an individual capacity appears to conflict with the ADEA's careful definition of "employer" to exempt employers of fewer than twenty persons. Whether this exemption evidences a congressional desire to protect small employers from the burdens associated with litigating discrimination claims, see, e.g., Miller, 991 F.2d at 587, or to protect the associational rights of individuals and small entities, see Jendusa v. Cancer Treatment Ctrs. of Am., Inc., 868 F. Supp. 1006, 1013-15 (N.D. Ill. 1994), imposing independent personal liability on individual employees in their capacity as agents appears to be at odds with the text and structure of the statute. Individuals who are acting as agents are the "smallest of legal entities," Grant, 21 F.3d at 649, and "if Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees." Miller, 991 F.2d at 587; compare Jendusa, 868 F. Supp. at 1014 (given congressional desire to protect associational rights of small businesses, legislative history of Title VII does not conclusively demonstrate that Congress did not intend individual liability). As one Court of Appeals has recently noted, "it would be incongruous to hold that the ADEA does not apply to the owner of a business employing, for example, ten people, but that it does apply with full force to a person who supervises the same number of workers in a company employing twenty or more." Birkbeck, 30 F.3d at 510.
The unique relationship between the Fair Labor Standards Act ("FLSA") and the ADEA does not change this conclusion. Unlike Title VII or the ADA, the ADEA selectively incorporates certain remedies and procedures of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq. See 29 U.S.C. § 626(b). Because courts have held that "the term employer [under the FLSA] includes individuals with managerial responsibilities and 'substantial control over the terms and conditions of the [employee's] work,'" Lee v. Coahoma County, 937 F.2d 220, 226 (5th Cir. 1991) (quoting Falk v. Brennan, 414 U.S. 190, 195, 38 L. Ed. 2d 406, 94 S. Ct. 427 (1973)), some courts have suggested that Congress intended to incorporate into the ADEA the broad definition of employer in the FLSA. See, e.g., House v. Cannon Mills Co., 713 F. Supp. 159, 160-61 (M.D.N.C. 1988). However, the FLSA contains an explicit and more expansive definition of employer than the ADEA. See 29 U.S.C. § 203(d) ("'Employer' includes any person acting directly or indirectly in the interest of an employer in relation to an employer"); see also 29 U.S.C. § 203(g) ("'Employ' includes to suffer or permit to work"). In addition, the fact that the ADEA selectively incorporates certain remedial and procedural portions of the FLSA suggests that Congress intended to adopt only those portions expressly referenced. See Miller, 991 F.2d at 588 n.3. Finally, unlike the ADEA, the FLSA does not exempt small employers from its reach. The FLSA's definition of employer provides no exception for employers who employ fewer than a certain number of employees.
Plaintiffs contend that the ADEA should provide for individual liability because it advances the remedial goals of the statute. The ADEA is one of a series of federal civil rights statutes broadly designed to eradicate invidious discrimination in the workplace. See McKennon v. Nashville Banner Publishing Co., 130 L. Ed. 2d 852, 115 S. Ct. 879, 884 (1995). To effectuate this goal, the remedial aspects of the ADEA are designed both to deter employers from engaging in discrimination and to provide relief to the victims of discrimination. McKennon, 115 S. Ct. at 884. Thus, it has been argued that individual liability is necessary to achieve these goals. See, e.g., Hamilton v. Rodgers, 791 F.2d 439, 442 (5th Cir. 1986).
For instance, one judge has observed,
the prospect of individual liability is essential if the antidiscrimination statutes are to have their full deterrent effect.. . . This court cannot conclude that Congress intended to accomplish Title VII's deterrence function through indirect reliance upon the marketplace assumptions concerning the actions of rational economic actors/employers after incurring a civil penalty based on the discriminatory conduct of one of their employees.