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In December 2012, the Supreme Judicial Court of Maine held that supervisors cannot be held individually liable under the Maine Human Rights Act (5 M.R.S. sec. 4572(1)(A)). In so doing, the Court clarified the question of supervisor liability under Maine law and explicitly disagreed with almost twenty years of contrary decisions issued by the Maine Commission on Human Rights.
In Fuhrmann v. Staples The Office Superstore East, Inc., 2012 ME 135 (Dec. 11, 2012), the plaintiff brought claims for whistleblower discrimination, pursuant to the Whistleblowers' Protection Act (26 M.R.S. sec. 833(1)(A)) ("WPA"), and sex discrimination, under the Maine Human Rights Act (5 M.R.S. sec. 4572(1)(A)) ("MHRA"), against Staples and four of its managerial employees individually. The plaintiff's claims were premised on the allegation that Staples and the named supervisors made it impossible for her to continue to work for the company after they retaliated against her for reporting the miscoding of furniture in a manner that she believed constituted tax fraud. The lower court dismissed the plaintiff's claims against the individual defendants on the basis that neither the MHRA nor the WPA provides for individual liability. Subsequently, the lower court entered summary judgment in favor of Staples on plaintiff's remaining claims. On appeal, the Court reversed the lower's court's entry of judgment on the plaintiff's whistleblower discrimination claim against Staples, but affirmed the court's dismissal of all claims brought against the individual defendants.
Both the MHRA and the WPA apply to employment discrimination committed by "employers." Under the MHRA, an "employer" includes "any person acting in the interest of any employer, directly or indirectly." (5 M.R.S. sec. 4553(4)). Under the WPA, "employer" is defined to include "an agent of an employer and the State." (26 M.R.S. sec. 832(2)). Despite the slight differences in the statutory definitions, the Court performed a single analysis to determine the scope of "employer" liability under both statutes. The Court found that "[b]oth the MHRA and WPA seek to protect employees against discrimination by providing an avenue of recourse when they have been treated unfairly," and that, therefore, "[b]oth definitions of ‘employer' . . ., when read in light of those purposes and in the context of the statutory scheme, are meant to hold the principal/employer liable for acts of its agents/employees." The Court further found that the remedies and penalties provided for under the statutes additionally show that the statutes were intended to apply to the employer, and not individual supervisors, because "by ensuring that the employee will be able to hold the ultimate employer accountable for rectifying discrimination, these acts seek to protect the employee's right to vindication even when the person who was directly responsible for the violation attempts to place the blame elsewhere, is powerless to correct it within the corporation, is unable to pay the penalty, or when there is no other legal recourse." The Court recognized that in holding that the MHRA did not provide for individual supervisor liability, its decision was at odds with the Commission's interpretation of the MHRA dating back to 1995, but determined that the Commission's previous interpretations had exceeded the legislative intent of the statutes as indicated by the statutory scheme and underlying policies.
The New Hampshire Supreme Court has not had the opportunity to resolve the question of individual supervisor liability under the NH Human Rights Act (RSA 354-A), therefore, the issue remains unresolved under New Hampshire law. Under RSA 354-A:7, it is an unlawful discriminatory practice "for an employer, because of the age, sex, race, color, marital status, physical or mental disability, religious creed, or national origin of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification. In addition, no person shall be denied the benefit of the rights afforded by this paragraph on account of that person's sexual orientation.". The statutory definition of "employer," under RSA 354-A:2, VII, does not mention individuals. A separate provision of the definition section of NH Human Rights Act, however, defines "unlawful discriminatory practice" to include: "(d) Aiding, 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." RSA 354-A:2, XV(d). The definition does not specify who precisely is prohibited from aiding and abetting unlawful discriminatory practices. Additionally, under RSA 354-A:19, "It shall be an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to discharge, expel, or otherwise retaliate or discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding under this chapter.".
While the New Hampshire Supreme Court has not had the opportunity to address the issue of individual supervisor liability under RSA 354-A, several of the New Hampshire Superior Courts have held that supervisors can be held individually liable under the prohibition against aiding and abetting and prohibition against retaliation. In a 2007 decision out of the Rockingham County Superior Court, for example, Judge John M. Lewis determined that RSA 354-A's prohibitions against aiding and abetting unlawful discriminatory practices and retaliation were written broadly enough to apply to any person, including individual supervisors, and noted that had the legislature intended to limit applicability of those provisions to employers only it would have expressly included such limiting language. On that basis, the court denied the individual defendant's motion to dismiss. Order on Motion to Dismiss, Rowe v. Thibeault Corp., No. 06-E-554 (Rockingham Cty. July 31, 2007). In so holding, the court explicitly disagreed with a 2005 decision out of the United States District Court for the District of New Hampshire, which had held that RSA 354-A:19 applied only to employers. See Jones v. McFarland Ford Sales, Inc., No. Civ. 05-CV-347-JD, 2005 WL 3447954, at *2 (D.N.H. Dec. 15, 2005).
The Superior Court's decision in Rowe is consistent with decisions applying the Massachusetts Fair Employment Practices Act (M.G.L.A. c. 151B). Chapter 151B similarly prohibits employers from engaging in discriminatory practices, but also prohibits "any person" from aiding and abetting in the violation of the statute (M.G.L.A. c. 151B, sec. 4(4A)) or from acting to coerce, intimidate, threaten, or interfere with another's right to work free of unlawful discrimination (M.G.L.A. c. 151B, sec. 4(5)). The Massachusetts Commission Against Discrimination has interpreted these provisions to allow for individual supervisor liability under certain circumstances. See, e.g., Woodason v. Town of Norton School Comm., 25 Mass. Discrim. L. Rep. 62, 2003 WL 554332 (2003) (concluding that an individual could be held liable under Chapter 151B if he or she "interfered with another's rights in a manner that was in deliberate disregard of those rights").
Notably, the Massachusetts and New Hampshire decisions have found individual supervisor liability only under the provisions prohibiting aiding and abetting a violation of the anti-discrimination statute or the provisions prohibiting retaliation. The Maine Human Rights Act, held not to permit claims against individual supervisors in the Fuhrmann decision, does not include a similar prohibition against aiding and abetting. The MHRA does, however, include a provision prohibiting retaliation and coercion which applies to "persons," and which is not specifically limited to employers. (5 M.R.S. sec. 4633). The recent Fuhrmann decision did not address whether the plaintiff could have stated a claim against the individual supervisors under this provision. Therefore, while the Fuhrmann decision did much to clarify what exposure individual supervisors have to suits based on allegedly discriminatory practices under Maine law, plaintiffs may still attempt to bring suit against individuals under the MHRA's prohibition against retaliation.
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