Two recent cases out of New Hampshire and Massachusetts highlight the contours of individual liability for discriminatory practices under state and federal law. In brief, while federal anti-discrimination laws do not provide for individual liability for supervisors, decision-makers, and other coworkers, both states’ anti-discrimination laws contain language that may subject employees to individual liability for discriminatory acts or practices.
In a December 13, 2012 decision, Bentley v. City of Lebanon, the United States District Court for the District of New Hampshire confirmed the position that Title VII only applies to “employers.” Title VII does not authorize suits against employees or third parties who interfere with the employment relationship. As a result, the Court dismissed all federal claims brought by the plaintiff against individual defendants and the City of Lebanon, which was not the plaintiffs actual employer. The remaining state law claims were remanded back to state court for determination.
While Bentley did not significantly change the legal landscape, it does serve as a reminder that claims for individual liability under Title VII will fail.
In contrast to federal law, claims for individual liability under state anti-discrimination laws in both Massachusetts and New Hampshire may be viable, depending of course on the relevant facts. In a November 2012 decision, Lopez v. Commonwealth, the Supreme Judicial Court of Massachusetts adopted a standard for determining individual liability that, while previously employed by the MCAD, federal courts, and superior courts, had not been formally adopted by the state’s highest court.
While the bulk of the Massachusetts anti-discrimination laws apply to the employer or similar entity, three section expressly apply to “any person,” including individual defendants. MGL c. 151B, s. 4 defines unlawful discriminatory practices. Subsection (4) forbids retaliation and expressly applies to “any person.” Subsection (4A) makes it unlawful for “any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter,” or to take such actions against another person who has aided or encouraged another to exercise such a right. Finally, Subsection (5) makes it unlawful for “any person, whether an employer or employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.”
In Lopez, the SJC adopted the standard that, to prove that an individual is liable for aiding or abetting a discriminatory act or practice, the plaintiff must establish that the individual: (1) committed “a wholly individual and distinct wrong…separate and distinct from the claim in main”; (2) “that the aider or abetter shared an intent to discriminate not unlike that of the alleged principal offender”; and (3) that “the aider or abetter knew of his or her supporting role in an enterprise designed to deprive [the plaintiff] of a right guaranteed him or her under G. L. c. 151B].”
Unlike Massachusetts, the New Hampshire Supreme Court has not expressly recognized the existence of individual liability under its state anti-discrimination laws. RSA 354-A:2, XV(d) does, however, include within the definition of “unlawful discriminatory practice” “[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 this chapter or any order issued under the authority of this chapter.” Thus, while the road to individual liability in New Hampshire is not as clear as in Massachusetts, the foundation for a claim exists.