17 Trial Lawyer • Summer 2022 tion under Oregon law against entities and individuals engaged in discrimination. The persons covered by the law might be co-workers or managers working for the same employer, but they might also be staffing agencies, labor unions or other third parties (such as newspaper publ i sher s ) . See ORS 659A.001(9) (broadly defining “person” in the chapter). In many cases, the addition of an individual supervisor as a defendant, along with the employer, will do little to change the source of the recovery. The employer (or its insurer) will likely be on the hook for all damages based on principles of agency law (though not always). But this law still provides plaintiff ’s counsel with a valuable jurisdictional tool. Because the individual wrongdoer is often an Oregon resident, and the corporate employer often is not, naming the former can defeat diversity jurisdiction. Doing so may keep the case in state court, where the law makes it much harder for employers to win on summary judgment and avoid the scrutiny of a jury. Naming individual defendants can also help broaden the scope of available discovery. For these reasons, employers have tried every possible approach to dampen or even extinguish the statute’s power. One of their most common lines is that a person cannot aid and abet themself. Based mostly on this pithy bit of reasoning, employers have argued that a company’s controlling owner or executives cannot be held liable for aiding and abetting, as they are functionally the same as the employer by dint of their control. Similarly, defense lawyers have argued that the primary decision-maker in an employment discrimination case cannot be sued. Both these arguments rely on the premise that the individual actor did not “aid and abet” the discrimination — they were ones who actually discriminated. See Accomplices p 18
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