Employment Plaintiff attorneys often include an “aiding and abetting” claim against the “deep pocket” employer when they sue for employment discrimination under the New Jersey Law Against Discrimination.
This blog will focus on two issues: the legal elements of an aiding and abetting claim and what steps employers should take to protect themselves from this claim.
A Plaintiff proves aiding and abetting against an employer under the New Jersey Law Against Discrimination by showing the following elements:
- The party whom the defendant aids must perform a wrongful act that causes injury,
- The defendant must be generally aware of his or her role as part of the overall illegal or tortious activity at the time he or she provides the assistance, and
- The defendant must knowingly and substantially assist the principal violation.
Tarr v. Ciasulli, 181 N.J. 70, 84 (2004).
A claim for aiding and abetting “requires active and purposeful conduct.” Cicchetti v. Morris Cnty Sheriff’s Off., 194 N.J. 563, 594 (2008). Aiding and abetting focuses on “whether a defendant knowingly gave substantial assistance to someone engaged in wrongful conduct, not on whether the defendant agreed to join the wrongful conduct.” Podias v. Mairs, 394 N.J. Super. 338, 353 (App. Div. 2007). For example, if an employer knew that one of its employees was sexually harassing another employee and did nothing to stop it, which allowed the sexual harasser to continue his/her unlawful conduct, the employer could be sued for aiding and abetting and other theories under the New Jersey Law Against Discrimination.
With that understanding of the elements of the claim, it is crucial for employers to take affirmative steps to stop known violations of the New Jersey Law Against Discrimination. They include: (1) effective training to convey that workplace discrimination will not be tolerated by the employer; (2) providing employees who believe they have been subjected to discriminatory conduct to report such conduct and providing multiple avenues to report the same; (3) requiring upper-level employees (shareholders, partners, supervisors, members) to report workplace discrimination; and (4) immediately, and effectively dealing with allegations of workplace discrimination.
If one of your employees reports workplace discrimination, it is extremely important that you take the allegations seriously. It is recommended that your company engage an outside, independent law firm to conduct a comprehensive and thorough investigation into the allegations. If the allegations are deemed to be true, your company must take effective remedial steps to stop the conduct from happening again. Often, that includes the termination of the employee who was deemed to have violated the New Jersey Law Against Discrimination. It is also extremely important that your company take affirmative steps to ensure that the complainant or any person who provides information in furtherance of the discrimination claim is not subjected to any form of retaliation. Retaliation is a separate cause of action under the New Jersey Law Against Discrimination which can also expose your company to liability.
