16 Trial Lawyer • Summer 2022 Michael Owens By Michael Owens In 1972, the nascent National Organi- zation for Women filed an employment discrimination suit against one of nation’s premier newspaper chains, Gannett Company, Inc., under the Empire State’s employment discrimination law. But as a plaintiff, NOW was not an employee of Gannett or its co-defendant, the New York State Division of Human Rights. Instead, the feminist group argued that Gannett had aided and abetted unlawful discrimination by publishing two distinct “help wanted” sections: one for men and another for women. According to NOW, publishing the classified ads in this bifurcated manner was sex discrimination. The state agency had ruled against NOW in the earlier administrative action, but New York’s highest court ultimately overruled that decision in June 1974. Nat’l Org. for Women v. State Div. of Hum. Rts., 34 N.Y.2d 416, 421 (1974). As the New York Court of Appeals wrote: [S]ex discrimination, of course, is prohibited by section 296 of the Executive Law and those who aid or abet such unlawful discrimination are also chargeable with an unlawful discriminatory practice (Executive Law, s 296, subd. 6). In the case at bar, it is clear that Gannett may not be held culpable for directly perpetuating discrimination due to sex solely because of the manner in which it labels its want ads. Also, it is not an ‘employer’ nor is it an ‘employment agency’ as those terms are used and defined in section 292 of the Executive Law (Brush v. San Francisco Newspaper Print Co., DC, 315 F. Supp. 577, 580). However, since it published its want ads under separate sex designations, we hold that it aided and abetted sex discrimination, and such aiding and abetting is condemned by subdivision 6 of section 296 of the Executive Law. Id. (emphasis added). One of the most notable limitations of federal employment discrimination law is its inability to hold individual managers, supervisors and even offending co-workers personally liable for their acts of harassment, discrimination or retaliation. There are exceptions to this rule under certain wage and hour laws and leave laws, but under the landmark Title VII of the Civil Rights Act of 1964, only the employer itself is liable for unlawful employment practices. As with many employee rights, in this area Oregon offers far greater protection than the federal government, in part because Oregon’s anti-discrimination law is based on the New York law at issue in the NOW case. Or at least Oregon law provides such protection in theory and despite the best efforts of the defense bar. ORS 659A.030(1)(g) makes it unlawful “[f ]or any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.” (emphasis added). The chapter of the Oregon Revised Statutes the provision refers to, 659A, contains the bulk of Oregon’s employment discrimination laws, including the prohibitions on discrimination and retaliation based on race, religion, sexual orientation, disability, medical leave and whistleblowing, among many other bases. This aiding and abetting statute prohibits any person from assisting in the types of discrimination outlawed by Chapter 659, and thus through the enforcement prov i s ions of ORS 659A.885, there is a private right of acAccomplices to Discrimination AIDING AND ABETTING IN EMPLOYMENT LAW
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