NH Court Extends Liability for Sexual Harassment

working.oldtypewriterA somewhat  notorious case that illustrates the difficulty of holding sexual harassers to account is in the news again..

The New Hampshire Supreme Court ruled this month that an employee can be held liable for “aiding and abetting an unlawfully discriminatory practice committed by an employer” under the state’s anti-discrimination statute (RSA 354-A:2).

The ruling came in a case involving Fuller Oil Co. of Hudson, N.H. and its owner Frederick J. Fuller.

The company settled an EEOC sexual harassment complaint (without admitting liability) in 2005 by agreeing to pay five women a total of $750,000 and to institute company wide training in sexual harassment prevention. At the time, an EEOC official characterized Mr. Fuller as a “serial” sexual harasser.

In 2013, another EEOC sexual harassment complaint was filed charging Fuller with forcing office worker Nicole Wilkins to quit in 2011 when he allegedly grabbed and squeezed both of her breasts from behind while pinning her against her desk. The EEOC said the alleged assault was the culmination of a growing number of unwanted and inappropriate sexual comments and incidents of touching by Fuller. After Wilkins threatened to file an EEOC complaint, Fuller allegedly retaliated by firing Wilkins’ friend and co-worker, Beverly Mulcahey, for poor performance.

Fuller was subsequently arrested for the incident but settled that case by pleading no contest to a reduced charge of simple assault.

The company apparently refused to settle that case so the EEOC in 2014 filed a lawsuit charging both the company and Fuller with sexual harassment and retaliation. Fuller sought unsuccessfully to dismiss the case on the grounds that his behavior amounted to a single crude gesture and was not objectively offensive. The oil and propane company went bankrupt, which had the effect of staying the lawsuit against the company. Fuller’s attorney then argued that Fuller could not personally be held liable under New Hampshire’s anti-discrimination law for either sexual harassment or retaliation. A U.S. District Court judge asked New Hampshire’s highest court to interpret the state’s anti-discrimination law and decide whether it permits an individual employee to be held liable for aiding and abetting employment discrimination and  retaliation by the employer. New Hampshire’s high court answered “yes” this month.

The New Hampshire court noted the anti-discrimination law  provides that “any act of aiding, abetting, inciting, compelling or coercing another to commit an unlawful discriminatory practice, or attempting to do so, or obstructing or preventing any person from complying with the [law] is itself an unlawful discriminatory practice.”  The Court ruled that absolving individual employees from liability for aiding and abetting employment discrimination is “plainly inconsistent with the stated intent” of the law, which is to “eliminate and prevent discrimination in employment.” Furthermore, the court said individual employees can be held liable for retaliation.

The N.H. high court’s ruling permits Wilkins and Mulcahey to seek monetary damages from Fuller individually for aiding and abetting his former company’s alleged unlawful acts.

 

New Hampshire court adds ominous side note – state’s anti-discrimination law exempts employers with six workers or less.

The N.H. court’s ruling contains an ominous side note. The court noted that New Hampshire’s anti-discrimination law only applies to employers with six or more employees. The court said it is only logical to conclude that if an employer is exempt from the law, individual employees of the employer also are exempt from liability.  So God help workers who work for a New Hampshire company with fewer than six employees.

The case is U.S. Equal Employment Opportunity Commission, et al. v. Fred Fuller Oil Company, et al., Case No. 2015-0258 (Feb. 23, 2016).

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