Last week, I discussed a case in which New Jersey’s Appellate Division ruled a Jury Must Decide Whether Workers Are Employees or Independent Contractors Under New Jersey Law Against Discrimination. The same case also concludes that supervisors can be held personally liable under the New Jersey Law Against Discrimination (“LAD”) even if the supervisor was the only one who participated in the harassment or discrimination.
The LAD does not make supervisors or other individuals directly liable for engaging in prohibited discrimination or harassment. Instead, it makes it unlawful for anyone “to aid, abet, incite, compel or coerce” a violation of the LAD. As a result, courts have struggled with the question of whether a supervisor can be held personally liable for aiding and abetting harassment or discrimination if he was the only one who participated in it. Some courts have held there is no personal liability under those circumstances since the supervisor did not aiding or abetting anyone else. But, in Rowan v. Hartford Plaza LTD., LP, the Appellate Division ruled such a supervisor could be held personally liable for aiding and abetting the company’s violation of the LAD even if the only way the company violated the LAD was through the supervisor actions.
The New Jersey Supreme Court has previously recognized employees can be held liable for aiding and abetting a violation of the LAD if they engaged in “active and purposeful conduct.” That means the supervisor has to have been aware he engaged in an act prohibited by the LAD that harmed another employee, and in doing so knowingly and substantially assisted his employer in violating the LAD. In determining whether a supervisor did so, a judge or jury must consider: (1) the ways in which the supervisor participated in the harassment or discrimination, (2) the extent to which the supervisor assisted the harassment or discrimination, (3) whether the supervisor was present when the harassment or discrimination actually occurred, (4) the supervisor’s relationship to the other employees involved in the harassment or discrimination, and (5) the supervisor’s own motives and intentions.
In ruling that a supervisor can be held personally liable for aiding and abetting a violation of the LAD he committed by himself, the Appellate Division explained that supervisors have a unique role in shaping a work environment and are responsible for preventing and correcting unlawful harassment in the workplace. It also relied on the fact that previous cases have recognized supervisors can violate the LAD if they affirmatively assisted the harassment or discrimination, or if they acted with deliberately indifference toward it. The Court found it would not make sense if a supervisor could be held liable for failing to stop someone else from committing harassment or discrimination, but could not be held liable for personally committing the same harassment or discrimination.
It is important to note that Rowan is an unpublished opinion, meaning it is not legally binding on future trial courts. As a result, the question of whether and when a supervisor can be held personally for his or her own acts of unlawful harassment or discrimination remains an open question.