New England Biz Law Update
In “Alice in Wonderland,” the Queen of Hearts once proclaimed, “Why, sometimes I’ve believed as many as six impossible things before breakfast.” This intriguing declaration mirrors the spirit of many plaintiffs across the country when they file administrative charges and lawsuits, much like Alice navigating a fantastic world.
They continue to name individual supervisors and human resources directors as individual defendants despite case law that generally holds individuals cannot be found liable under some of the most common federal employment discrimination laws.
Like Alice venturing into the unknown, plaintiffs embark on a similar journey, regardless of clear case law supporting the dismissal of individuals. A federal court judge in Oregon recently outlined this costly and questionable practice in his dismissal opinion in a case involving Starbucks, much like Alice’s encounters with the eccentric characters of Wonderland:
“[Plaintiff’s] attorneys regularly file suit in state court for violations of these [discrimination] statutes against individual employees, knowing that they likely will be defended and indemnified by the employer, for the ostensible purpose of educating and deterring them from unlawful behavior. This court fails to see any need to file a lawsuit to deter such unlawful behavior. Even if employees are not sued individually, their employer surely will take appropriate action to deter any future behavior. [Plaintiff’s] attorneys also admitted that as a matter of course they sue employees prior to engaging in discovery and obtaining any evidence as to how complicit the employees may have been in the alleged discrimination or retaliation. Instead, they appear to presume that any employee who questions the plaintiff’s work performance should be sued.”
Individuals named in a lawsuit are put in a terrible position of having to defend themselves – a situation akin to Alice navigating Wonderland’s strange challenges. Even if they are eventually dismissed from the complaint, they do not come out unscathed, and they often get stuck expending valuable time, mental energy, and sometimes money for defense.
This “Wonderland” approach to employment litigation seems to suggest that plaintiffs take the Cheshire Cat’s words to heart in their pursuit of monetary gains: “If you don’t know where you are going, any road can take you there.”
However, it’s important to understand that certain legal roads do lead to a place where individuals can be held liable for their actions. Just as Alice discovered unique rules and challenges in Wonderland, New Jersey, New York, Massachusetts, Connecticut, Ohio, Oregon, Pennsylvania, and Washington are among the states that allow plaintiffs to bring claims against individuals under the theory that they “aided and abetted” discrimination or harassment, much like Alice’s encounters with Wonderland’s peculiar inhabitants.
In the end, managers, HR directors and supervisors should take a cue from Alice’s adventures in Wonderland when considering how to protect themselves and their companies: “It takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!”
To better protect themselves and their organizations, employers should: 1, ensure their employee handbooks accurately reflect the ever-changing laws related to protected classes and all forms of harassment; 2, schedule harassment and discrimination trainings with managers and non-managers; 3, emphasize, from the top down, the importance of workplace culture; and 4, remember that when selecting an individual defendant, plaintiffs typically choose the person who “wronged” them.
Your workplace’s Wonderland is yours to shape by taking collective responsibility for its culture. Remaining complacent exposes both companies and individuals to potential pitfalls, as disgruntled employees, much like the Queen of Hearts, may exclaim, “Off with their heads!”
Stephen Scott is a partner in the Portland office of Fisher Phillips.
