Liability in bias cases

NH Supreme Court ruling makes all employees potentially liable for workplace harassment

In EEOC v. Fred Fuller Oil Co., the NH Supreme Court ruled, for the first time, that individual employees can be held personally liable for aiding and abetting workplace discrimination or engaging in retaliatory conduct under New Hampshire’s Law Against Discrimination.

The law establishes that it shall be an “unlawful discriminatory practice” for an employer with six or more employees to “refus[e] to hire or employ or to bar or discharge from employment … or to discriminate against [any] individual in compensation or in terms, conditions or privileges of employment” based upon the individual’s age, sex, race, creed, color, marital status, familial status, sexual orientation, physical or mental disability, or national origin.

The statute also prohibits “any person, employer, labor organization, employment agency, or public accommodation” from “[a]iding, abetting, inciting, compelling or coercing another or attempting to aid, abet, incite, compel or coerce another to commit an unlawful discriminatory practice or obstructing or preventing any person from complying with th[e statute] or any order issued under the authority of th[e statute].” 

Furthermore, it prohibits retaliation against an individual who opposes workplace discrimination or who participates in any complaint proceeding opposing 

In Fred Fuller, the court determined that, the statute defines “person” broadly to include “one or more individuals,” individual employees who either aid and abet workplace discrimination or retaliate against another person in the workplace because he or she has engaged in protected conduct can be held personally liable for an unlawful discriminatory practice under the statute. 

This means that individual employees may be held liable for violating the law, even if they are not themselves engaging in harassing or discriminatory conduct. 

Accordingly, employees who bring claims under the law may now include their employer and individual employees as named defendants in a complaint of discrimination or harassment brought under the statute, as well as in any resulting lawsuit. 

Thus, the Fred Fuller decision expands potential liability not only to individual employees who engage in alleged harassment or discrimination, but also to other employees who are alleged to have assisted (“aided” or “abetted”) the harasser, or who allegedly obstructed or prevented compliance with the law (engaged in retaliation).

While the court did not discuss what would constitute “aiding or abetting” or other specific individual conduct that would violate the law, the expansive language of the statute in conjunction with its application to individual employees has the potential to lead to claims against supervisors, administrators or even other co-workers.

For example, the supervisor who observes or receives an employee complaint of discrimination or harassment, the human resources director responsible for administering anti-discrimination policies, or the employer’s senior manager may all face individual liability if a jury were to determine that their actions, or inactions, allowed unlawful harassment or discrimination to occur or to continue. 

At this point, the true scope of who may face individual exposure under has not been tested. However, it is clear that individuals held liable under the Law Against Discrimination would face a broad array of potential damages, including plaintiff’s lost earnings, attorneys’ fees, compensatory damages, and/or administrative fines.

In response to the Fred Fuller decision, employers may wish to re-evaluate whether they have adequate insurance coverage for discrimination/harassment claims and, specifically, whether their insurance policies provide sufficient coverage for individual employees who may now be named as defendants.

For employers that currently self-insure the risk of discrimination or harassment claims, it would be prudent to reassess the cost/benefit of that decision given the expanded scope of potential liability.

If such an employer chooses to remain uninsured, it should consider adopting clear policies regarding the circumstances in which they will or will not defend or indemnify employees who are named as defendants in discrimination/harassment cases. 

As always, the best way to avoid liability to is avoid claims. Cautious employers should take this opportunity to review their anti-discrimination and harassment policies to assure that they are legally compliant and provide employees with an accessible process for reporting misconduct.

Employers should also consider holding a refresher training program that emphasizes the role of supervisors in the handling of harassment and discrimination complaints.

Finally, employers should take a hard look at their workplace culture to ensure that employees understand that harassing and/or discriminatory conduct simply will not be tolerated. 

Anna B. Cole and Laurel A.V. McClead are labor and employment attorneys with Drummond Woodsum, a general practice firm based in Manchester, NH, and Portland, Maine.