18 Trial Lawyer • Summer 2022 Employers have had no small measure of success with these arguments, especially in federal court. As the U.S. District Court noted in Aichele v. Blue Elephant Holdings, LLC, “[i]n this District courts have held a primary actor in an employee’s termination cannot be held liable pursuant to this statute for aiding and abetting when that person was the primary decision-maker and acting pursuant to their authority.” 292 F. Supp. 3d 1104, 1115 (D Or 2017). Relatedly, in cases such as Baker v. Maricle Industries, Inc., the courts have held that an individual acting on behalf of the employer cannot be held liable for aiding and abetting unless they were acting outside the scope of their employment. No. 6:16-CV01793-AA, 2017WL 1043282, at *4 (D Or Mar. 17, 2017). Finally, employers have also sought to escape liability for any aider/abettor who is not employed by the same employer as the plaintiff. Focusing on the modifier that follows person in the statute — “whether an employer or an employee” — the defense bar has argued that while “person” might have a broad definition, this statutory modifier limits aiders and abettors only to the employer itself and to its other employees. In sum, these defense arguments would provide the following set of limitations: First, only the employer and its employees can be considered liable under the law — no third parties. Second, however, an employer can almost never be an abettor to the discrimination, because it is the one doing the underlying discrimination. For the same reason, its owners and executives cannot be held liable and nor can the actual decision-makers. Their decisions are attributable to the employer itself. And, finally, even a lateral coworker cannot be liable unless somehow they were acting outside the scope of their employment. The defense view takes a cavernous grant of statutory protection, prohibiting any person from aiding in discrimination or retaliation, and shrinks it to a spider hole. Fortunately, the Oregon appeals courts have recently stepped in to reverse the systematic defanging of the law — thanks in large part to the work of OTLA members. In McLaughlin v. Wilson, the Oregon Supreme Court interpreted a nearby subsection of ORS 659A.030 prohibiting retaliation by any person. 365 Or 535, 542 (2019). However, in dicta the court addressed the aiding and abetting statute to note that it might well cover persons outside the same employment relationship: [T]he phrase ‘whether an employer or an employe[e]’ could have been used in paragraph (g) either to qualify the term “person” (limiting the referenced persons to employers and employees) or for emphasis (clarifying that “person” really does include employees). Id. Two recent decisions from the Oregon Court of Appeals have been even more helpful. In Hernandez v. Catholic Health Initiatives, the defendants “contended that ORS 659A.030 (1)(g) applies exclusively to conduct by employers and employees and does not extend to conduct by third parties to the employment relationship[.]” 311 Or App 70, 73 (2021). OTLA filed an amicus brief authored by Guardian Cody Hoesly, which the court mentioned favorably in its decision as containing “a detailed tracing of the history of ORS 659A.030(1) (g), including copies of primary source materials[.]” Id. at 74. Reviewing that history, the court noted the statute originally prohibited discrimination by any person “whether an employer or employe[e], or not,” and was only changed to remove the “or not” language as part of a housekeeping amendment intended to remove unnecessary language but not to change the law’s meaning. Id. at 77-78. The court sided with the plaintiff, represented by OTLA Guardian Richard Meyers, and made clear that “aid-or-abet liability under ORS 659A.030 (1)(g) is not limited to employers and employees. Anyone qualifying as a “person” under ORS 659A.001(9) may be an aider or abettor of an unlawful employment practice in a way that subjects them to liability under ORS 659A.030 (1)(g).” Id. at 80-81. A month later, a different panel of the court reached the same conclusion in Charlton v. Ed Staub & Sons Petroleum, Inc., 312 Or App 522 (2021). The plaintiff in that case was represented by OTLA members Carl Post and John Burgess of the LawOffices of Daniel Snyder. OTLA also filed an amicus brief. When ORS 659A.030 was first enacted, it was intended “to eliminate and prevent discrimination in employment because of race, religion, color or national origin or by employers, employees, labor organizations, employment agencies or other persons.” Or Laws 1949, ch. 221, § 2 (emphasis added). The statute’s prohibition on aiding and abetting is critical to that goal. As the New York Court of Appeals wrote in 1974: [T]o designate separate want and column listings as ‘HelpWanted— Male’ and/or ‘Help Wanted—Female’ reinforces the very discriminatory practices which the Federal and State antidiscrimination laws were meant to eliminate. Nat’l Org. forWomen, 34 N.Y.2d at 42122. These recent victories in Oregon courts, building on years of case law from New York and other states with similar prohibitions, give hope the tide is turning against the efforts of employers and their at torneys to s t i f l e the power of 659A.030(1)(g) in reaching this goal. Michael Owens handles employment discrimination cases. He is Of Counsel at Meyer Stephenson, 1 SWColumbia St. Ste. 1850, Portland OR 97204. Owens can be reached at mike@oregonworkplacelaw.com or 503-567-5101. Accomplices Continued from p 17
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