New Hampshire Discrimination Law Imposes Individual Employee Liability, State Supreme Court Rules

Author: Michael Cardman, XpertHR Legal Editor

March 8, 2016

Individuals may be held personally liable for aiding and abetting workplace discrimination under New Hampshire law.

A plain reading of the text of the New Hampshire Law Against Discrimination shows the law applies not only to employers, labor organizations and employment agencies, but also to individual persons, the New Hampshire Supreme Court recently ruled in US EEOC v. Fred Fuller Oil Co, Inc..

The New Hampshire Law Against Discrimination prohibits employment discrimination based on age, sex, race and other protected categories. A separate provision of the law also makes it illegal to fire or otherwise retaliate against anyone who files a discrimination complaint. Employers with fewer than six employees are exempt.

The Fuller case started when two women sued their former employer, the Fred Fuller Oil Company, Inc., for sexual harassment and retaliation. They also sued Frederick J. Fuller, an employee of Fuller Oil, individually.

Fuller sought to have the individual charges against him removed, arguing that discrimination liability should be limited to employers because it would be illogical for the legislature to have exempted employers with fewer than six employees from liability yet subjected individual employees of these exempt employers to liability.

The court rejected this interpretation, saying it would "absolve an individual employee from any liability for aiding and abetting his employer to commit an unlawful act of discrimination," which would have conflicted with the statute's intention "to eliminate and prevent discrimination in employment."

However, the court agreed with Fuller that it would be illogical to hold individual employees liable for retaliation if they are employed by an employer that is exempt from liability because it has fewer than six employees. As a result, it held that the law imposes liability for retaliation on individual employees of a qualifying employer with six or more employees.