VOL. 209 - NO 3 JULY 16, 2012 ESTABLISHED 1878
By Lawrence J. Del Rossi andJoshua D. Rinschler
n what has become common prac-tice in wrongful discharge casesbrought under the New Jersey LawAgainst Discrimination (LAD), termi-nated employees are not only suing theiremployer, but also naming as an individu-al defendant the supervisor who made thedecision to terminate.
The LAD prohibits an array of un-lawful employment practices and un-lawful discrimination by “employers.”N.J.S.A. §10:5-12(a). Although super-
visory employees are not dened as
“employers” under the LAD, “employ-ees” can be liable if they “aid, abet, in-cite, compel or coerce” the harassmentor discrimination of another. N.J.S.A.§10:5-12(e). It was only within the lastdecade that the New Jersey Supreme
Court rst set forth the standard for
holding an employee liable as an aiderand abettor under the LAD. However,much confusion on this frequently-liti-gated issue remains, and courts applyingNew Jersey law have yet to follow a uni-form rule in situations where a supervi-sor is alleged to have aided and abettedhis or her own conduct.To hold an individual liable as an“aider and abettor” under the LAD, aplaintiff must show that the individual:(1) performed a wrongful act that causedan injury; (2) was generally aware of hisor her role as part of an overall illegalor tortious activity at the time that heor she provided the assistance; and (3)knowingly and substantially assisted inthe principal violation.
Tarr v. Ciasulli
,181 N.J. 70, 83-84 (2004). Aiding andabetting requires “active and purpose-ful conduct.”
Cicchetti v. Morris Coun-
ty Sheriff’s Ofce
194 N.J. 563, 595(2008).In most cases applying aiding andabetting liability, there are allegationsthat two or more employees acted inconcert. However, it is far from clearwhether a supervisor can be individu-ally liable under an aiding and abettingtheory when the only wrongful conductat issue is the
supervisor’s own acts
of harassment or discrimination. Indeed,two distinct lines of cases have devel-
oped — one nding supervisory em
-ployees can be personally liable foraiding and abetting their own wrongfulconduct, and another refusing to imposeindividual liability.
: Individual Liability for Aiding andAbetting One’s Own Conduct
One of the rst cases to examine
whether supervisors can aid and abettheir own wrongful conduct is
Hurleyv. Atlantic City Police Dep’t
, 174 F.3d95 (3d Cir. 1999). The plaintiff, a police
ofcer, brought suit against the Atlan
-tic City Police Department and her di-rect supervisor, individually, alleging
the supervisor and other police ofcershad sexually harassed her. The plain
-tiff alleged that, in addition to his own
afrmative acts of harassment, her su
-pervisor laughed when the plaintiff hadcomplained to him about harassmentfrom her co-workers and told her tostop complaining or it would get worse.The jury found the supervisor individu-ally liable under the LAD for aiding andabetting.The Third Circuit Court of Appealsagreed with the district court that thesupervisor could be liable as an aiderand abettor, stating that a supervisorcould be “liable for aiding and abettingthe actionable conduct of his employer,[even] when the challenged conductis failing to stop the supervisor’s own
harassment.” The court explained this
“somewhat awkward theory of liability”as follows: “A supervisor, under NewJersey law, has a duty to act against ha-rassment. This duty can be violated by
deliberate indifference or afrmativelyharassing acts. When a supervisor outs
this duty, he subjects himself and hisemployer to liability.” Other courts, fol-
Aiding and Abetting Your Own Conduct
An ‘awkward theory’ of personal liability for supervisory employees under the N.J. Law Against Discrimination
Reprinted with permission from the JULY 16, 2012 edition of
New Jersey Law Journal
. © 2012 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
New Jersey Law Journal
Del Rossi is a senior associate, and Risnchler is an associate, in the labor and employment practice group of Drinker Biddle & Reath in Florham Park.