District Court Questions “Aiding and Abetting” Liability for Non-Supervisory Employees Under NJLAD

Gibbs v. Caswell Massey, et al., 2009 U.S. Dist. LEXIS 23578, No. 07-cv-3604 (D.N.J., March 26, 2009) – The plaintiff in this action sued her former employer after she was terminated following a complicated pregnancy and numerous absences. She later sought to amend her complaint to add the company president and his assistant as individual defendants under the NJLAD.

Citing the recent decision in Cicchetti v. Morris Cty. Sheriff’s Office, 194 N.J. 563 (2008) [reported in the June 2008 issue of The New Jersey eAuthority], the district court permitted the amendment as to the company president, who plaintiff alleged had actively and purposefully harassed her due to her medical condition. However, the court denied the amendment as to the non-supervisory employee. Noting that Cicchetti did not specifically address aiding and abetting liability as to non-supervisory employees, the court relied upon the Third Circuit decision in Hurley v. Atlantic City Police Dep’t, 174 F.3d 95 (3d Cir. 1999), which predicted the New Jersey Supreme Court would decline to hold a nonsupervisory employee liable as an aider and abettor for his or her own affirmative acts of harassment, because such acts do not substantially assist the employer in its wrong.

While noting it was bound to follow the Third Circuit’s decision in the absence of guidance from the New Jersey Supreme Court, the district court strongly questioned this conclusion, explicitly stating that if not for Hurley, it would have granted the plaintiff’s motion to add the non-supervisory employee as an individual defendant.

Note: This article was published in the April 2009 issue of the New Jersey eAuthority.