Individual Employees Can Be Held Liable for Discrimination and Retaliation in the Workplace

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Donald “Lee” Smith, Esq.

The New Hampshire Supreme Court recently issued a decision in the case ofEEOC v. Fred Fuller Oil Company, Inc. that permits an employee to sue both the employer and individual employees for discrimination, harassment, and/or retaliation in the workplace under New Hampshire RSA 354-A. In the Fred Fuller case, two employees filed suit in federal court claiming that they were sexually harassed and retaliated against while employed at Fred Fuller Oil Company in violation of RSA 354-A. The employees sued both the company and Frederick J. Fuller, an employee of the company, and the alleged harasser. Prior to trial, and after the company filed for bankruptcy, the federal court asked the New Hampshire Supreme Court to determine whether an individual employee could be held liable for discrimination and/or retaliation under RSA 354-A.

On February 23, 2016, the New Hampshire Supreme Court issued a decision answering the certified question in the affirmative. The Court found that RSA 354-A permits a plaintiff to file a complaint against a “person, employer, labor organization, employment agency or public accommodation alleged to have committed the unlawful discriminatory practice.” It further found that RSA 354-A defines an “unlawful discriminatory practice” to include “aiding, 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 this chapter or any order issued under the authority of this chapter.” The Court held that because RSA 354-A permits a claim against a “person” who “aids or abets” discrimination in the workplace, RSA 354-A permits an employee or former employee to sue individual employees who allegedly aided or abetted in the alleged discriminatory conduct. The Court employed similar reasoning to hold that an individual employee can also be held liable for aiding or abetting retaliatory conduct. The Court did, however, preserve the jurisdictional limitations in RSA 354-A and held that employees and former employees may only sue an individual employee under the “aider and abetter” theory if the employer has at least six employees.

This decision makes it substantially more likely that plaintiffs in employment discrimination, harassment, and retaliation claims under RSA 354-A will sue the employer and various individual employees within the workplace, including the alleged harasser/retaliator or anyone who allegedly assisted the alleged harasser/retaliator. While it has always been possible for direct claims to be brought against the alleged harasser for tort liability, such as assault or defamation, the Fred Fuller decision now makes it possible to bring individual discrimination claims against the alleged harasser, and those in the workplace who allegedly aided, abetted, or assisted the alleged harasser. In other words, owners, supervisors, and human resources professionals could now face individual claims under RSA 354-A. This is particularly true in cases where an employer has or may file bankruptcy that would otherwise prevent the claims from proceeding against the company. While adding an individual employee as a named defendant does not create any additional damage claims for the plaintiff, it can make the litigation more complex and costly as potential conflicts between the employer and the individual employee may force the employer (or its insurer) to retain separate counsel for both the company and the employee. It could also create insurance coverage issues about whether an alleged harasser is entitled to coverage under Employment Practice Liability Insurance (EPLI) policies.

Employer takeaway
Now is an excellent time for New Hampshire employers to review their workplace policies and procedures on preventing, reporting, and investigating claims of discrimination and harassment in the workplace. Supervisor training on these topics is always highly recommended. Employers who create and implement prompt and effective response strategies to claims of discrimination are in a much better position to avoid claims under RSA 354-A from being filed.

Further, now is also an excellent time for employers to assess whether they have adequate workplace insurance coverage in the event of a claim under RSA 354-A. Your employment liability coverage should anticipate and address these claims which are now available against individual employees.  Employers should have a thorough discussion with insurance agents on coverage issues in light of the various claims and potential conflict scenarios. It is essential to have these coverage discussions before the facts giving rise to a claim of discrimination or harassment occurs in the workplace.