Theodore Avis (not his real name) began employment with the City of Southfield Police Department in 1997 and was appointed to the position of Detective in 2003.  In August 2011, he went out on sick leave due to complications from diabetes.  Det. Avis returned to work in July, 2012, without restrictions, but he was hospitalized in September 2012, with new complications and began a second sick leave.

In mid-July 2013, Det. Avis’s personal physicians cleared him to return to work on September 1, 2013, without restrictions.  On July 23, 2013, the City’s health care provider (“Corporate Health”) also cleared Det. Avis to return to work on September 1, 2013, without restrictions.

A few weeks later, Corporate Health changed its recommendation and refused to allow Det. Avis to return to work and instead sent him for a Functional Capacity Exam (“FCE”).  Following the FCE, Corporate Health determined Det. Avis could not return to work and instead sent him for physical therapy.  Det. Avis completed the recommended physical therapy but was not re-evaluated by Corporate Health and was never cleared to return to work. Instead, the City terminated Det. Avis’s employment.

Det. Avis filed a lawsuit against the City of Southfield alleging disability discrimination.  He also named Corporate Health, alleging that it aided and abetted in the discrimination by the city.

In addition to prohibiting unlawful discrimination by an employer, the New Jersey Law Against Discrimination (NJLAD) also declares that it shall be unlawful discrimination “[f]or any person, whether an employer or an employee or not to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so.” N.J.S.A. 10:5-12e (emphasis added).  It is under this provision of the LAD that Det. Avis contended defendant Corporate Health was liable for its role in aiding the City of Southfield to violate the LAD.

Corporate Health argued it could not be liable under the LAD due to “the lack of any employee-employer relationship between Plaintiff and the Moving Defendants”.  However, its argument ignored the plain language of Section 12e of the statute which clearly states that an aider and abettor need not be an employer.   The Passaic Daily News v. Blair, 63 N.J. 474 (1973).

The LAD provides that “employers” are liable for acts of employment discrimination, and defines with specificity who is an employer for this purpose. See N.J.S.A. 10:5–12(a). In addition, however, the LAD also includes a prohibition that goes beyond employers and provides that “[i]t shall be … unlawful discrimination … [f]or any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden [under the LAD]….” N.J.S.A. 10:5–12(e).  Cicchetti v. Morris Cnty. Sheriff’s Office, 194 N.J. 563, 591, 947 A.2d 626, 643 (2008).

In The Passaic Daily News v. Blair, 63 N.J. 474 (1973), the New Jersey Supreme Court first analyzed the aiding and abetting section of the LAD.  It found that:

[B]y making available the advertising columns of its newspaper the publisher is aiding the employer or employment agency placing the advertisement in discriminating in employment on the basis of sex to the same extent that the advertiser is itself guilty of a violation of the act in seeking its publication.

Id. at 486.  The Court agreed with the Pennsylvania court in a similar case which was affirmed by the United States Supreme Court in Pittsburgh Press Co. v. The Pittsburgh Commission on Human Relations, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973).  The Pennsylvania Commonwealth Court said:

This is not a matter of whether the Pittsburgh Press intentionally conspired with some employer or employers to discriminate against women.  What is of importance is that through the use of its arbitrarily selected column headings the Pittsburgh Press ‘aids’ such employers to discriminate.

Pittsburgh Press Co. v. Pittsburgh Com’n on Hum. Rel., 287 A.2d 161, 169 (Cmwlth. Ct. 1972).  The Court in Passaic Daily News held that a publisher of a newspaper “who either initiates or acquiesces in advertising publication practices which discriminate or encourage or facilitate discrimination in employment” “aids” in such discrimination within the meaning of N.J.S.A. 10:5-12e.  Id. at 488.

In Gardenhire v. New Jersey Manufacturers Insurance Co., 333 N.J. Super. 219 (Law Div. 2000), the Court determined whether a workers’ compensation adjuster could be liable under Section 12(e) of the NJLAD as an aider and abettor.  The Court recognized that the language of the statute applies to “any person” which, it concluded, could apply to a workers compensation carrier.  In reaching this determination, the Court found that the language of Section 12(e) was unambiguous.  Citing Connecticut National Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391, 397 (1992), the Court restated the “universal canon of statutory construction that unambiguous statutory language must be read according to its plain meaning.”  Id. at 224.  “When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’” Ibid.

The Gardenhire Court also referenced our own Supreme Court’s repeated emphasis that the goal of statutory construction is to determine the Legislature’s intent.  Id. at 225.  “Where the Legislature’s intent is remedial, a court should construe a statute liberally.”  Ibid.  As to the LAD specifically, it found that the Legislature has directed the LAD be liberally construed to effectuate its broad remedial purpose.  Ibid.

Given the unambiguous language of the statute, coupled with its broad remedial purpose, the Court found, “as an undisputed initial matter,” that the workers compensation carrier and the individual adjustor “may be potentially liable under N.J.S.A. 10:5-12(e) for aiding and abetting an alleged LAD violation against plaintiff.”  Id. at 226.

The Court’s finding in Gardenhire is closely analogous to the issue that was before the Court in Det. Avis’s case.  In both cases, the moving defendants were not Plaintiff’s employer.  Rather, they were an individual and a company which Plaintiff claimed aided and abetted his employer in discriminating against him.  Ultimately, the Gardenhire court found that Plaintiff had not put forward sufficient facts to establish liability against the moving defendants.  But that case was decided on summary judgment, after discovery had been completed.  In Det. Avis’s case, Corporate Health moved to dismiss based solely on the argument that it could not be liable as an aider and abettor under the statute because it was not Det. Avis’s employer.

Our courts have held that, to be liable as an aider or abettor, “a plaintiff must show that ‘(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time he provides assistance; [and] (3) the defendant must knowingly and substantially assist the principal violation.”  Tarr v. Ciasulli, 181 N.J. 70, 84 (2004).

Corporate Health did not argue that Det. Avis could not establish these factors. The sole basis for its motion to dismiss was that “[a] defendant with no direct employment relationship with the plaintiff is not liable under an ‘aiding and abetting’ theory of liability”.  The trial court in Det. Avis’s case recognized that this is clearly wrong under both the plain meaning of the statute as well as uncontradicted case law interpreting the aiding and abetting provision of the LAD.  Accordingly, Corporate Health’s motion to dismiss was denied.