On February 23, 2016, the New Hampshire Supreme Court has clarified that under the New Hampshire Discrimination Statute, RSA 354-A, individuals can be liable for aiding and abetting the employer company in discrimination in the workplace and for retaliation in the workplace. The case is U.S. Equal Employment Opportunity Commission, et al v. Fred Fuller Oil Company, Inc., yet the issue that went to the New Hampshire Supreme Court from the federal court is brought by those individuals who stated they were discriminated against by Fred Fuller, the owner of Fuller Oil, from whom they sought damages directly since his company filed for bankruptcy. The practical effect of the Court’s Order is that a manager or other decision-maker of an New Hampshire employer company can personally liable for discrimination or for retaliating due to the employee making a claim for discrimination.
Consider this scenario: You are the operation manager for a manufacturing facility and a female employee makes a discrimination report against her co-worker claiming that he made specific lewd comments to her and grabbed certain body parts of her. You bring this information to the attention of the majority shareholder and President of the corporation employer and he tells you he does not need the hassle and to just fire both of them. You follow the President’s order and fire them both. While it would not be much of a surprise that the worker who is doing the harassing could be personally liable, it is also quite possible that both you, as a mid-lever manager, and the President can be liable for retaliation in firing the female employee for reporting the concerns about discrimination.
This underscores the need to understand the sexual harassment laws and the significance of taking an adverse employment action against an employee because they have raised discrimination issues. For larger companies, while it would still be very uncomfortable as the operation manager to be added as a defendant in a lawsuit, it may be more probable that the company will have the ability to pay any judgment and the defense costs for that lawsuit. Certainly the company would want to pay the defense costs of the operation manager who was following the orders of the President. For smaller companies that are barely staying in business, the operation manager may have to pay his own defense costs, including potentially sizable attorneys’ fees as well as pay out of pocket any judgment against him. The operation manager may find that a defense that he was just following orders of the President is insufficient yet he should certainly raise that defense with any others.
If the operation manager refused to fire the female employee as instructed by the President and the President thereafter fired the operation manager, the operation manager would probably have a very strong wrongful discharge claim against the company. Hopefully the President, well before all that occurred, would seek legal advice from employment counsel and therefore avoid this very bad scenario for all.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].