Model Jury charge 2.22A LAW AGAINST DISCRIMINATION (LAD) INDIVIDUAL LIABILITY CLAIMS NJ
If you find that defendant [employer] has unlawfully discriminated [and/or retaliated] against plaintiff, you must then consider whether defendant [individual] should be held individually and personally responsible for aiding and abetting that discrimination [and/or retaliation].1 To hold defendant [individual] liable, plaintiff must show that (1) defendant [individual] was generally aware of his/her role in the overall illegal, unlawful, or tortious activity at the time that he/she provided the assistance, and (2) defendant [individual] knowingly and substantially assisted defendant [employer] in discriminating [and/or retaliating] against plaintiff. You may consider the following five factors when deciding whether defendant [individual] knowingly and substantially assisted defendant [employer]’s discrimination [and/or retaliation] against plaintiff: (1) the nature of the wrongful conduct encouraged; (2) the amount of assistance defendant [individual] provided to defendant [employer]; (3) whether defendant [individual] was present at the time that the discrimination [and/or retaliation] occurred; (4) defendant [individual]’s relationship to anyone else involved in the discrimination [and/or
1 It remains unsettled whether a non-supervisory employee may be held individually liable for aiding and abetting the discrimination of his/her employer. See Cicchetti v. Morris County Sheriff’s Office, 194 N.J. 563 (2008); Herman v. Coastal Corp., 348 N.J. Super. 1 (App. Div. 2002). CHARGE 2.22A — Page 2 of 2
retaliation]; and (5) defendant [individual]’s state of mind. Defendant [individual]’s failure to act so as to protect plaintiff or failure to respond effectively to plaintiff’s complaints of discrimination is insufficient to conclude that defendant [individual] provided substantial assistance to defendant [employer] so as to hold defendant [individual] personally liable.
Cases:
Cicchetti v. Morris County Sheriff’s Office, supra; Tarr v. Ciasulli, 181 N.J. 70 (2004); Hurley v. Atlantic City Police Dep’t, 174 F.3d 95 (3d Cir. 1999), cert. denied, 528 U.S. 1074, 120 S.Ct. 786, 145 L.Ed. 2d 663 (2000).
