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NEW HAMPSHIRE SUPREME COURT HOLDS THAT ALL EMPLOYEES FACE INDIVIDUAL LIABILITY FOR WORKPLACE HARASSMENT




February 24, 2016


On February 23rd, the New Hampshire Supreme Court issued a decision which holds 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, RSA 354-A et seq.

New Hampshire's nondiscrimination statute establishes that it shall be an "unlawful discriminatory practice" for an employer with at least six (6) 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, unless based upon bona fide occupational qualification" based upon the individual's age, sex, race, creed, color, marital status, familial status, sexual orientation, physical or mental disability, or national origin. RSA 354-A:7; RSA 354-A:2, VII. In its recent decision in E.E.O.C. v. Fred Fuller Oil Co., the Court determined that 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]." Fred Fuller, No. 2015-0258, slip op. at 5 (N.H. Feb. 23, 2016); see also RSA 354-A:2, XV(d); RSA 354-A:21, I(a). Furthermore, the statute prohibits "any person engaged in any activity to which th[e statute] applies" from retaliating against an individual who opposes workplace discrimination or who participates in any complaint proceeding opposing workplace discrimination. RSA 354-A:19. Therefore, where the statute defines "person" broadly to include "one or more individuals," as well as a variety of organizational forms, the Court determined that individual employees who aid and abet workplace discrimination or who 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. Fred Fuller at slip op. 5, 7; RSA 354-A:2, XIII.

Employers may also be held liable for unlawful discrimination or harassment directed against its employees under federal antidiscrimination laws. These federal laws do not, however, impose personal liability on alleged harassers, on supervisors and administrative personnel who may have failed to appropriately respond to harassment or discrimination complaints, or on employees at any level who engaged in retaliatory conduct. The New Hampshire Law Against Discrimination was largely intended to parallel the federal laws (e.g., Title VII of the Civil Rights Act of 1964 covers employers with 15 or more employees), while expanding coverage to smaller employers who employ as few as six employees. While New Hampshire's law, which was originally enacted in 1992, has always included references to "persons" as parties who may be subject to liability, until Tuesday's Fred Fuller decision, it was unclear whether the Legislature intended this reference to "persons" to put individuals in an employer's workforce at risk of personal liability for aiding and abetting unlawful discrimination or harassment, or for retaliating against coworkers for opposing such conduct. The Court has now affirmatively addressed the issue and determined that individual employees can be held personally liable for their conduct under the law. See Fred Fuller at slip op. 5, 7.

The Fred Fuller decision broadly expands the scope of potential named defendants in a complaint of discrimination or harassment filed under RSA 354-A and in any resulting lawsuit. Although the alleged harasser has always been potentially liable for his or her conduct under other legal theories (such as assault, battery, intentional infliction of emotional distress, invasion of privacy, etc.), the Fred Fuller decision establishes that those individuals may also face liability under New Hampshire's Law Against Discrimination. This effectively means that the alleged harasser may be subject to a broader array of potential damages, including the plaintiff's lost earnings, attorney's fees, compensatory damages, and/or administrative fines. Additionally, and likely of greater import, the Fred Fuller decision now opens employees who actively or passively "assist" the harasser to potential liability. For example, the supervisor who observes or receives an employee complaint of discrimination or harassment, the Human Resources Director responsible for administering the employer's anti-discrimination policies, or an employer's senior management may all face individual liability if a jury were to determine that their actions, or inactions, allowed unlawful harassment or discrimination to occur or continue.

As a direct consequence of this decision, it would be prudent for employers to determine whether they have adequate insurance coverage for discrimination and harassment claims. Employers should further determine whether their insurance policies provide adequate coverage for individual employees who may now be named as party defendants. Uninsured employers may wish to reevaluate the cost/benefit of essentially self-insuring their liability risk. Uninsured employers should also consider adopting clear policies regarding the circumstances in which they will or will not defend and/or indemnify employees who are named defendants in discrimination/harassment cases.

As always, the best way to avoid liability is to avoid claims. Prudent employers should take this opportunity to review their anti-harassment and discrimination efforts. Employers should assure that their anti-discrimination policies are legally compliant and provide employees with an accessible process for reporting misconduct. Employers may also need to intensify their training programs, with particular emphasis on the role of supervisors in the handling of harassment and discrimination complaints. In order to protect the interests of all employees, employers may need to cause a workplace culture shift to make clear that harassment and discrimination conduct is simply no longer tolerable to any degree.

If you have questions about your or your employees' obligations under New Hampshire's Law Against Discrimination, please contact any member of Drummond Woodsum's Labor and Employment Group. Drummond Woodsum's labor and employment attorneys are also available to provide discrimination and retaliation trainings.

A more complete discussion of the facts and potential implications of the Fred Fuller decision for schools will appear in Drummond Woodsum's School Law Advisory on March 1, 2016. To subscribe the School Law Advisory please contact Donna Swiderek at dswiderek@dwmlaw.com or go to the SchoolLaw.com website to sign up.



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