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Individual can be liable for aiding, abetting harassment, retaliation under New Hampshire law

By Lorene D. Park, J.D.

In a suit alleging that the owner of a company sexually harassed employees and retaliated for protected activity, the New Hampshire Supreme Court responded to questions certified from the federal district court concerning individual liability under state law. Relying mainly on statutory definitions, it answered that under the New Hampshire Revised Statutes, an employee can be individually liable for aiding and abetting workplace discrimination and for workplace retaliation against someone for engaging in protected activity (EEOC v. Fred Fuller Oil Co., Inc., February 23, 2016, Conboy, C.).

Federal court proceedings. In the underlying suit, the company owner was accused of sexually harassing two female employees. He allegedly commented frequently on one employee’s breasts, told her that he wanted to show her his “night crawler,” and inappropriately touched her. She resigned and brought criminal charges. She also informed the company she was planning to file a discrimination charge. The owner allegedly made harassing comments to the other employee and once crudely grabbed his crotch and asked “what can you do for me” in response to her request for time off. Less than a month later, after the first employee resigned, the second employee was allegedly subject to retaliation based on her close friendship with her former coworker.

In prior proceedings, the federal district court denied the employer’s motion for judgment on the pleadings because the EEOC sufficiently pleaded hostile work environment and retaliation claims. The court noted that the relationship between the two women fell in a “gray area between close friend and casual acquaintance” but might be close enough to support the retaliation claim, depending on further discovery. The owner then sought to prohibit the employees from asserting claims against him in his individual capacity under New Hampshire law, RSA chapter 354-A. The district court informed the parties that it would not allow such claims. Thereafter, the company filed for bankruptcy protection, so the case was stayed.

Certified questions. The federal case was later reopened only as to the claims against the owner. Because the questions of whether an employee can recover damages from another employee for (1) aiding and abetting sexual harassment or (2) retaliation under RSA chapter 354-A concerned unresolved issues of state law, the federal court certified the two questions to the New Hampshire Supreme Court. (Neither the EEOC nor the other defendant, Fuller Oil, was a party to the certification proceeding.) After providing a detailed review of relevant statutory provisions, the state high court answered both questions in the affirmative.

Aiding and abetting workplace discrimination. With respect to whether RSA 354-A:2 and RSA 354-A:7 impose liability on individual employees for aiding and abetting discrimination in the workplace, the court reviewed applicable definitions as well as acts identified as unlawful practices. It explained that “354-A:2, XV(d) specifies that any act of aiding, abetting, inciting, compelling or coercing another to commit an unlawful discriminatory practice … is itself an unlawful discriminatory practice.” However, noted the court, nothing in this language specified who might be liable for aiding and abetting an unlawful practice. It therefore looked to other provisions of chapter 354-A for guidance, noting that 354-A:21, which governs procedures for complaints, states that any aggrieved person may sign and file with the New Hampshire Commission for Human Rights (HRC) a complaint stating “the name and address of the person, employer, labor organization … alleged to have committed the unlawful discriminatory practice complained of.”

Reading that provision in conjunction with 354-A:2, XV(d) and 354-A:2, XV(d), the state high court concluded a complaint may be filed against a “person” who committed the unlawful practice of aiding and abetting workplace discrimination. “Person,” said the court, is defined in RSA 354-A:2, XIII as including “one or more individuals, partnerships, associations … .” Consequently, individuals may be liable for aiding and abetting discrimination in the workplace.

Retaliation in the workplace. Likewise, RSA 354-A:19 states that it is an unlawful practice for “any person” engaged in any activity to which chapter 354-A applies to retaliate against any person because he or she opposed practices forbidden by the chapter or because he or she filed a complaint, testified, or assisted in any proceeding under the chapter. Based on this language, the state high court found that individual employees can be liable for retaliation in the workplace. As explained with respect to the aiding and abetting analysis, “person” is defined to include one or more individuals, and the chapter applies to the activity of “employment.” Thus, any person who retaliates against another person in the workplace because of a protected action may be liable under RSA 354-A:19 for an unlawful discriminatory practice.