The Arkansas Civil Rights Act (“ACRA”), defines an employer as “a person who employs nine (9) or more employees in the State of Arkansas in each of twenty (20) or more calendar weeks in the current or preceding calendar year, or any agent of such person.” A.C.A. § 16-123-102 (5). This particular definition has never been reviewed by either the Arkansas Court of Appeals or the Arkansas Supreme Court.
However, the Arkansas Supreme Court has reviewed the definition of the word “person” finding that this word means human being and thus human beings can be held individually liable for violations of provisions of the ACRA. Calaway v. Practice Management Services, Inc., 2010 Ark. 432 at *4. Unfortunately, the federal courts in Arkansas appear to be at odds with the Arkansas Supreme Court on this interpretation of Arkansas state law.
Over twenty years ago, the Eighth Circuit misinterpreted a Missouri state law very similar to the ACRA. In that case, the Eighth Circuit held that individuals were not liable under that state’s laws for violations of the Missouri Human Rights Act even though the Act specifically provided for individual liability. Lehnhardt v. Basic Institute of Technology, Inc. 55. F.3d 377, 381 (1995). The Missouri Court of Appeals rebuked this holding in a later opinion which held, “We find that the plain and unambiguous language within the definition of ‘employer’ under the MHRA imposes individual liability in the event of discriminatory conduct.” Cooper v. Albacore Holdings, Inc., et. al., 204 S.W.3d 238, 244 (Mo. App. E.D. 2006).
Utilizing Lehnhardt, the federal courts of Arkansas have consistently held that since Title VII does not provide for individual liability, then there is no liability under the ACRA either. Morrow v. City of Jacksonville, Ark., 941 F.Supp. 816, 820 (E.D. Ark. 1996); Evans v. AutoZone Stores, Inc., 2008 WL 697752 at *5 (W.D. Ark. Mar. 13, 2008) (citing to both Lehnhardt and Morrow as authority); Richardson v. City of Pine Bluff, Ark., 2006 WL 3388341 at *1 (E.D. Ark. Nov. 21, 2006) (citing to both Lehnhardt and Morrow as authority). These rulings do not appear to consider the Arkansas Supreme Court ruling in Calaway or the Missouri Court of Appeals rejection of the Eighth Circuit’s interpretation of “employer”in Cooper.
It is my hope that this issue will finally be resolved here in Arkansas by a federal judge either certifying this question to the Arkansas Supreme Court or reviewing the Lehnhardt case in light of both Callaway and Cooper to come to the conclusion that the Arkansas law means what it says — individuals are liable under the ACRA even though they are not liable under Title VII. Failing to do this will result in more Plaintiff’s abandoning protections under federal law in order to ensure proper interpretation of Arkansas state law in the state courts.