Can a Human Resources Director be named individually as a defendant in a lawsuit alleging harassment and retaliation, even if the HR Director never engaged in any harassing behavior? A decision in a Hawai‘i case indicates the answer is yes. A federal judge in Hawai‘i recently ruled that a terminated employee could pursue a claim that the HR Director “aided and abetted” harassment by allegedly not investigating an employee complaint and taking appropriate action.
Lawsuit Alleges Sexually-Charged Workplace
In a lawsuit filed in August 2017, a former Hawai‘i-based employee of a national real estate company alleged that she was subjected to harassment based on her sex (female) and sexual orientation (openly gay). Among other things, the plaintiff alleged she was required to organize and attend company marketing events so that the manager in charge of the company’s Hawai‘i operations could “pimp out” his wife and her friends and enable a sexual relationship between his wife and a wealthy client. She alleged the Hawai‘i manager taunted her by making offensive comments about women in the workplace, deliberately picked on and ridiculed her, and told her that her work attire was not feminine enough. She also alleged that she was asked by the Hawai‘i manager to hire “hot” female dancers for a marketing event.
HR Director Allegedly Failed to Investigate Complaints
The plaintiff alleged she complained repeatedly to the company’s Colorado-based HR Director about the harassment and other inappropriate conduct by her Hawai‘i-based manager. In one instance, she alleged that she specifically asked the HR Director to investigate her complaints, but that the HR Director refused. She alleged that the failure to take action enabled the alleged workplace abuse “to continue unabated.”
Termination
The lawsuit alleged that because of the HR Director’s failure to take remedial action, the plaintiff asked to speak directly with the company’s CEO about it. She contends the CEO “gave no credence to her complaints” and instead, “abruptly terminated [her] employment.” She alleged she received a letter from the company that said the decision to terminate was based on her “uncorroborated allegations” that demonstrated a “lack of respect and trust” for the Hawai‘i manager. The plaintiff alleged this letter was direct evidence that the termination was unlawful retaliation for her complaint about harassment.
Suit Names Manager, HR Director and CEO As Defendants
In addition to suing her former employer for sexual harassment and retaliation, the plaintiff also sued the Hawai‘i manager who allegedly engaged in the harassing behavior and the Colorado-based HR Director and CEO. In response, the individual defendants asked the Hawai‘i judge presiding over the case to dismiss the claims against them because the allegations in plaintiff’s lawsuit were insufficient. The judge disagreed, allowing the claims to proceed to the next phase of the case.
“Aiding and Abetting” Theory Alleged
The judge refused to dismiss the claims because he found the plaintiff’s allegations to be sufficient under an “aiding and abetting” theory of liability. Hawai‘i law makes it unlawful for a person (including another employee) “to aid, abet, incite, compel, or coerce” another into engaging in conduct prohibited by Hawai‘i’s employment discrimination laws. The judge explained that to bring a claim under this theory, a plaintiff “need only identify (1) the allegedly aiding-and-abetting individual defendant ‘as the person who incited, compelled, or coerced the discriminatory actions’ against the plaintiff; and (2) another, different defendant or employee ‘as the person who was incited, compelled or coerced into taking discriminatory actions’” against the plaintiff.
Failure to Investigate Allegation Sufficient
The defendants argued that even assuming that all of the plaintiff’s allegations about the HR Director were true, they were insufficient to establish “aiding and abetting” under Hawai‘i law. The judge rejected that argument, reasoning that the lawsuit had alleged that the HR Director essentially supported the Hawai‘i manager’s harassing conduct “via her failure to investigate or impose remedial action.” The judge found those allegations sufficient where the plaintiff also alleged the HR Director’s inaction benefitted the Hawai‘i manager responsible for the abuse and also the company’s “goal to develop investors and clientele” by being willing to do anything to make them happy.
Aiding and Abetting Termination
The judge also found that plaintiff could proceed on a claim of retaliation based on the theory that the CEO and HR Director had “aided and abetted” the company and each other by allegedly terminating her employment in response to her harassment complaint. The judge noted the plaintiff’s allegation that the CEO, HR Director and Hawai‘i manager “worked in concert, acquiescing in [the Hawai‘i manager’s] actions for the business benefit of the company and themselves” and that after receiving the plaintiff’s complaint, the CEO and HR Director “continued their concerted efforts by ignoring her requests for help, refusing to investigate, and when all of that failed to quiet her, terminating her and hoping that a modicum of severance pay would finally do the trick.”
Sirois v. East West Partners, Inc., No. 17-00383 (D. Haw. Jan. 5, 2018)
Bottom line
While the lawsuit contains only unproven allegations that the plaintiff may never be able to establish as true, the early unsuccessful challenge by the defense to plaintiff’s theories holds some lessons for employers. It is pretty unusual for an HR Director to be as a defendant in a lawsuit and the “failure to investigate” theory is also unique. But that’s not to say it is the last time it will be used. Therefore, if the #metoo movement hasn’t focused attention on the critical need to treat complaints about harassment seriously and to timely investigate them, perhaps the fear of being named in a lawsuit will drive home that point.
Amanda M. Jones is a partner in Cades Schutte’s Litigation Department. She is currently the editor of Hawai‘i Employment Law Letter, where this article first appeared. In that role, she is also a member of Employers Counsel Network.
