By Mark T. Broth
The New Hampshire Supreme Court’s recent decision in E.E.O.C. v. Fred Fuller Oil Co. could have significant implications for public employers, as elected officials and governmental employees can now be held personally liable for aspects of workplace discrimination and harassment.
New Hampshire’s nondiscrimination statute, RSA 354-A, provides 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” if such refusal to hire/employ and/or discrimination is based upon the individual’s age, sex, race, creed, color, marital status, familial status, sexual orientation, physical or mental disability, or national origin. Unlawful discrimination includes harassment of employees because of their status as a member of a protected class. The law 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].” The law also 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.
The Fred Fuller Decision
RSA 354-A has long prohibited “any person” from aiding and abetting discrimination and from retaliating against those who oppose workplace discrimination. However, due to the way in which the statute is worded, it remained unclear as to whether the Legislature intended to put individuals at risk of liability. The Commission for Human Rights has interpreted the statute as creating individual liability, but in 2005, the New Hampshire Federal District Court issued a decision which reached the opposite result.
The Fred Fuller Oil Co. is a discrimination case pending in the federal court. Rather than rely on the earlier federal court ruling that the statute did not provide for individual liability, the federal court “certified the question” to the New Hampshire Supreme Court. This is a process by which the federal court decides that it would be more appropriate for the highest state court to interpret a state statute.
In its decision, the New Hampshire Supreme Court held that the statutory references to “person” must be read in the context of the statutory definitions section, which defines “person” broadly to include “one or more individuals.” The Court determined that it was reasonable to assume that the Legislature intended that individual employees who aid and abet workplace discrimination, or who retaliate against another employee in the workplace because he or she has engaged in protected conduct, should be held personally liable for that unlawful discriminatory practice.
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 harassers may also be subject to liability under New Hampshire’s Law Against Discrimination. This effectively means that plaintiffs may now seek to hold the alleged harasser liable for a broader array of claimed damages, including lost earnings, attorney’s fees, and compensatory damages.
Additionally, and likely of greater import, the Fred Fuller decision now opens employees who actively or passively “assist” discrimination or harassment to potential liability. For example, the employee who helps a co-worker with a prank later deemed to be harassment; the department head or principal who observes or receives an employee complaint of discrimination or harassment; the Human Resources Director who processes the complaint; and the Town Manager or Superintendent who has overall responsibility for administering the employer’s anti-discrimination policies, 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.
Whether certain defenses usually available to governmental officials, such as statutory and common law immunities, will be applicable under the newly expanded Law Against Discrimination remains to be seen. At a minimum, it would be prudent for public employers to determine whether they have adequate insurance coverage for discrimination and harassment claims. Employers should further determine whether their insurance policies provide sufficient coverage for individual employees who may now be named as party defendants.
As always, the best way to avoid liability to is avoid claims. Prudent employers will take this opportunity to review their anti-harassment and discrimination efforts. Employers should assure that their anti-discrimination policies are legally compliant and provide all 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 take steps to ensure a shift in workplace culture to make clear that harassment and discrimination conduct is simply not tolerable to any degree.
Mark Broth is a member of the DrummondWoodsum’s Labor and Employment Group and his practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2016 Drummond Woodsum. These materials may not be reproduced without prior written permission.”
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