New Jersey Law Journal

VOL. 209 - NO 3 JULY 16, 2012 ESTABLISHED 1878

Aiding and Abetting Your Own Conduct

An awkward theory of personal liability for supervisory employees under the N.J. Law Against Discrimination
By Lawrence J. Del Rossi and Joshua D. Rinschler

EMPLOYMENT LAW
his or her own conduct. To hold an individual liable as an aider and abettor under the LAD, a plaintiff must show that the individual: (1) performed a wrongful act that caused an injury; (2) was generally aware of his or her role as part of an overall illegal or tortious activity at the time that he or she provided the assistance; and (3) knowingly and substantially assisted in the principal violation. Tarr v. Ciasulli, 181 N.J. 70, 83-84 (2004). Aiding and abetting requires active and purposeful conduct. Cicchetti v. Morris County Sheriffs Office, 194 N.J. 563, 595 (2008). In most cases applying aiding and abetting liability, there are allegations that two or more employees acted in concert. However, it is far from clear whether a supervisor can be individually liable under an aiding and abetting theory when the only wrongful conduct at issue is the supervisors own acts of harassment or discrimination. Indeed, two distinct lines of cases have developed one finding supervisory employees can be personally liable for aiding and abetting their own wrongful conduct, and another refusing to impose individual liability.
Hurley : Individual Liability for Aiding and Abetting Ones Own Conduct

n what has become common practice in wrongful discharge cases brought under the New Jersey Law Against Discrimination (LAD), terminated employees are not only suing their employer, but also naming as an individual defendant the supervisor who made the decision to terminate. The LAD prohibits an array of unlawful employment practices and unlawful discrimination by employers. N.J.S.A. 10:5-12(a). Although supervisory employees are not defined as employers under the LAD, employees can be liable if they aid, abet, incite, compel or coerce the harassment or discrimination of another. N.J.S.A. 10:5-12(e). It was only within the last decade that the New Jersey Supreme Court first set forth the standard for holding an employee liable as an aider and abettor under the LAD. However, much confusion on this frequently-litigated issue remains, and courts applying New Jersey law have yet to follow a uniform rule in situations where a supervisor is alleged to have aided and abetted 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.

One of the first cases to examine

whether supervisors can aid and abet their own wrongful conduct is Hurley v. Atlantic City Police Dept, 174 F.3d 95 (3d Cir. 1999). The plaintiff, a police officer, brought suit against the Atlantic City Police Department and her direct supervisor, individually, alleging the supervisor and other police officers had sexually harassed her. The plaintiff alleged that, in addition to his own affirmative acts of harassment, her supervisor laughed when the plaintiff had complained to him about harassment from her co-workers and told her to stop complaining or it would get worse. The jury found the supervisor individually liable under the LAD for aiding and abetting. The Third Circuit Court of Appeals agreed with the district court that the supervisor could be liable as an aider and abettor, stating that a supervisor could be liable for aiding and abetting the actionable conduct of his employer, [even] when the challenged conduct is failing to stop the supervisors own harassment. The court explained this somewhat awkward theory of liability as follows: A supervisor, under New Jersey law, has a duty to act against harassment. This duty can be violated by deliberate indifference or affirmatively harassing acts. When a supervisor flouts this duty, he subjects himself and his employer to liability. Other courts, fol-

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, JULY 16, 2012 they cannot be liable for aiding and abetting their own wrongful conduct. The court analyzed the complaint and found both allegations of specific wrongful acts on the part of each individual and allegations that the defendants aided one another in engaging in discriminatory conduct. Crucially, however, the complaint did not indicate that the named defendants were aiding or abetting wrongful conduct otherwise perpetrated by Quest or other Quest employees. None of these individual supervisor-defendants is accused of standing by while persons in their employ engaged in unlawful, discriminatory conduct. Accordingly, the court, citing Newsome, granted the supervisors motions to dismiss, holding that the supervisors are principal wrongdoers and they cannot aid and abet [their] own conduct. The Seibert decision stands in contrast to the courts ruling in Simonetti, 2012 WL 32931 (D.N.J. Jan. 5, 2012). In Simonetti, the plaintiff asserted disability discrimination claims under the LAD against his employer, and aiding and abetting claims against his direct supervisor. The alleged wrongful conduct at issue was almost entirely that of the defendantsupervisor. The court denied the supervisors motion for summary judgment on the aiding and abetting claim, holding that the supervisors alleged conduct was sufficient to meet the active and purposeful conduct requirement for aiding and abetting liability, notwithstanding that the supervisor allegedly aided and abetted his own discriminatory conduct. Nor are such conflicting decisions unusual or isolated. There are other recent cases following either Hurley or Newsome. Compare Fitzpatrick v. County of Monmouth, 2011 WL 2610252, at *7 (D.N.J. June 30, 2011) (following Hurley), with Amentler v. 69 Main Street, 2012 WL 28194, at *13 (D.N.J. Jan. 3, 2012) (following Newsome). Nowhere in the plain text of the LAD does it state that supervisors can be liable for aiding and abetting their own conduct. Nor do any of the factors set forth by the Supreme Court in Tarr
The Need for Clarity

209 N.J.L.J. 278

lowing Hurley, have held that a supervisor can be held individually liable for aiding and abetting his or her own conduct. See, e.g., Ivan v. County of Middlesex, 595 F. Supp. 2d 425 (D.N.J. 2009); Danna v. Truevance Mgmt., 2007 WL 2156361 (D.N.J. 2007).
Newsome: No Individual Liability for Aiding and Abetting Ones Own Conduct

Some courts have refused to impose individual liability upon supervisors when the basis of the aiding and abetting claims is the supervisors own acts of harassment and discrimination. In Newsome v. Admin. Office of the Courts of N.J., 103 F. Supp. 2d 807 (D.N.J. 2000), for example, the plaintiff brought a sexual harassment claim under the LAD against her employer and her supervisor based solely on the supervisors harassment. The court dismissed the aiding and abetting claim against the supervisor, holding that, as the alleged principal wrongdoer, [he] cannot aid and abet his own wrongful conduct, and that to find otherwise would simply be a transparent effort to evade the prohibition of direct individual liability. Courts have frequently relied on Newsome in dismissing aiding and abetting claims against individual supervisors when the complained-of conduct is solely the supervisors own affirmative acts of harassment or discrimination. See, e.g., Spinks v. Twp. of Clinton, 2006 WL 941973 (Law Div. March 27, 2006), affd, 402 N.J. Super. 465 (App. Div. 2008); Harmon v. Bemis Co., 2005 WL 1389174 at *10 (Law Div. April 12, 2005). Two recent cases, both issued out of the District Court of New Jersey, illustrate the ongoing lack of clarity on this issue: Seibert v. Quest Diagnostics and Simonetti v. Broadridge Fin. Solutions. In Seibert, the plaintiff brought LAD claims against her employer and three supervisors who, she alleged, conspired to discriminate against her on the basis of age. 2012 WL 1044308, at *2 (D.N.J. March 28, 2012). The supervisors moved to dismiss the claims against them, arguing that each is painted as a principal wrongdoer in the complaint, and thus

suggest that acting alone in violating the law constitutes aiding and abetting. Requiring that an individual supervisor aid or abet another person before individual liability can be imposed would not alter the remedial aims of the LAD. Title VII, for example, does not permit any individual liability. See, e.g., Youssef v. Dept of Health and Senior Servs., 423 Fed. Appx. 221, 224 (3d Cir. 2011). Individual liability for aiding and abetting seems more logical and consistent with the statutory language of N.J.S.A. 10:5-12(e) if a supervisor has actually aided and abetted the conduct of another person. The Minnesota Human Rights Act (MHRA), for example, requires that another person be involved before aiding and abetting liability attaches. The MHRA states that it is an unfair discriminatory practice for any person: Intentionally to aid, abet, incite, compel, or coerce a person to engage in any of the practices forbidden by this chapter. M.S.A. 363A.14 (emphasis added). Because the MHRA clearly requires the involvement of another person, Minnesota courts have held that an individual must have acted in concert with someone else in order to aid and abet, and an employee cannot aid and abet him or herself. Hubbell v. Better Bus. Bureau of Minn., 2009 WL 5184346 (D. Minn. 2009); see also Wallin v. Minn. Dept of Corr., 598 N.W.2d 393, 405 (Minn. Ct. App. 1999). Because the LAD does not explicitly require that another person be involved, some courts, like the court in Hurley, have used the provision as an indirect way to impose personal liability on supervisors for their own conduct; others, addressing nearly identical sets of facts, have held that supervisors cannot aid and abet their own conduct. As the law currently stands, litigants cannot be sure whether a court will impose individual liability on supervisors for their own acts of discrimination or harassment. Until the Legislature or the Supreme Court resolves the conflicting decisions on this issue, this confusion will likely continue, and the LADs awkward theory of liability will, at least in some cases, continue.