Oregon law protects employees against discrimination, harassment and retaliation from employers. We all know that an Oregon employee can sue the employer when the employer discriminates, retaliates, or fails to deal with harassment. But what about the actual man or woman who is responsible for the violation? May the employee sue him or her, too?
An Oregon statute authorizes victims to sue an employee if the boss or co-worker "aids, abets, incites, compels or coerces" the commission of unlawful employment practices. So the answer is, "yes," an employee may sue a boss or co-worker who is responsible for discrimination, harassment, retaliation or some other violations of law.
The next question is whether it makes sense to sue an employee. My general philosophy is K.I.S.S., which stands for keep it simple, stupid. There is no reason to add to your burden of proof or, possibly, add another law firm to oppose you unless there is a good reason. So, generally, I discourage suing employees. But there are two exceptions to my general rule.
The first exception is for closely held corporations. Sometimes, and employer might say, "So, sue us. We'll file bankruptcy." If "Oregon, Inc." can liquidate on day 1 and re-open on day 2 as "Portland, Corp.," then it makes sense to name the boss who aided or compelled the unlawful conduct. Then, the boss has an incentive not to play games with the corporate entity.
A second exception is when the "bad guy" is a citizen of Oregon but the employer is a "citizen" of another state. Sometimes, it is in the interest of a worker to sue an Oregon citizen to keep the case in a state court, not a federal court.
Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234
The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.
