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Missouri Supreme Court establishes elements of a claim for aiding and abetting discrimination, and more

ABSTRACT: Missouri Supreme Court establishes elements of claim for aiding and abetting discrimination under the MHRA, and also finds that employees may state a claim for hostile work environment, even if they did not directly witness the discriminatory conduct, because they too may feel the impact of discriminatory acts.

In an earlier blog I wrote that the Missouri Court of Appeals, Western District, had overruled the Circuit Court’s dismissal of claims for racial discrimination, hostile work environment, and aiding and abetting discrimination filed by several Black employees of Syncreon and Harley Davidson. See Emanual Matthews, et al. v. Harley Davidson Motor Company Operations, Inc., et al., No. WD85267 (May 2023). Subsequently, Syncreon and Harley sought transfer to the Missouri Supreme Court, which was granted. Once transferred, the Missouri Supreme Court reviewed the Circuit Court’s grant of the defendants’ motion to dismiss de novo.

The Supreme Court considered two issues: whether the Circuit Court erred in granting a motion to dismiss: (1) the plaintiffs’ claim for a hostile work environment; and 2) the plaintiffs’ claims for aiding and abetting discriminatory conduct. The Missouri Supreme Court held that the plaintiffs had sufficiently pleaded claims for both hostile work environment and aiding and abetting, reviving those claims and remanding the case to the trial court.

Hostile Work Environment Claim

Regarding the plaintiffs’ hostile work environment claim, Syncreon and Harley argued that the plaintiffs failed to properly plead two required elements. First, the defendants argued the plaintiffs failed to plead they were subjected to unwelcomed harassment. The Supreme Court disagreed. The plaintiffs’ Petition stated that Syncreon and Harley subjected the plaintiffs to a “continuous pattern of hostile work environment based on race discrimination – including outrageous instances such as swastikas, nooses, a noose hanging a doll of a Black woman, and multiple graffiti using vile racial slurs against Black employees,” all of which the plaintiffs alleged constituted “individually and collectively, racial harassment.”

As they did before the Court of Appeals, the defendants primarily focused on their argument that none of the plaintiffs pleaded they personally witnessed or experienced any of the incidents that they complained about. The Supreme Court noted the incidents complained of were, by their very nature, targeted, and preyed on all Black employees in the plant. Because the plaintiffs alleged they were “subjected to” this unwelcome harassment, the Supreme Court held this element of a hostile work environment claim was sufficiently pleaded.

The defendants further claimed the plaintiffs failed to plead that a term, condition, or privilege of their employment was affected by harassment – another necessary element. Again, the Supreme Court disagreed. The plaintiffs had pleaded that the “ongoing series and cumulative effect” of the racial incidents they alleged “was so pervasive or severe as to create a hostile work environment” for each plaintiff, which directly caused the plaintiffs damages and injury to their dignity and civil rights. Additionally, the plaintiffs alleged the harassment unreasonably interfered with their work performance and adversely affected their physiological well-being. They also pleaded that the harassing conduct was severe and pervasive as viewed subjectively by the plaintiffs and as viewed objectively by a reasonable person.

The Supreme Court held these allegations sufficiently alleged that the plaintiffs were subjected to discriminatory harassment severe or pervasive enough to create an abusive working environment.

Aiding and Abetting Discrimination Claim

Next, the Supreme Court addressed whether the plaintiffs had sufficiently pleaded their claims that Syncreon and Harley aided and abetted violations of the MHRA. This was a matter of first impression, as the Supreme Court had never previously set forth the ultimate facts necessary to support an aiding and abetting claim under the MHRA.

Interestingly, the Supreme Court relied on the Restatement (Second) of Torts, which provides, in pertinent part:

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he…. knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself.

The assistance of or participation by the defendant may be so slight that he is not liable for the act of the other.

Restatement (Second) of Torts § 876 cmt. D (1979). Emphasis added.

In assessing whether a defendant provided substantial encouragement or assistance, the Supreme Court noted it considers “the nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other, and his state of mind”. Id.

In applying this standard, the Supreme Court first noted the alleged actions of the defendants, individually, would constitute a violation of the MHRA. However, the Court found the plaintiffs pleaded sufficient additional facts that the defendants further aided and abetted others in creating and fostering a hostile work environment.

The plaintiffs specifically pleaded multiple instances that Syncreon provided substantial encouragement or assistance, including allegations it urged employees to stay quiet about incidents that allegedly created a hostile environment, discarded written employee complaints in the trash, and misled an employee as to the status of an investigation into a noose incident. The Supreme Court held all of these actions taken by Syncreon could be inferred to suggest that it not only allowed but also provided substantial encouragement or assistance to create and foster a hostile work environment. The Supreme Court also held the plaintiffs sufficiently pleaded an aiding and abetting claim against Harley Davidson. They alleged Harley had the right to control Syncreon. Further, the plaintiffs claimed Harley’s command over the employment structure and the resulting deference shown to its’ management by Syncreon reinforced the plaintiffs’ physical segregation and endorsed the ongoing structural conflict between Black and White employees. The Court noted the plaintiffs recited multiple occasions where Harley failed to prohibit Syncreon management or its own employees from engaging in acts creating the alleged hostile work environment.

By pleading that either Syncreon or Harley management attempted to destroy evidence of racial harassment, the Supreme Court held the plaintiffs sufficiently alleged that Syncreon, Harley, or both substantially encouraged or assisted the discriminatory conduct that created and fostered a hostile work environment. Similarly, the plaintiffs had also pleaded that a plant manager told a supervisor to dispose of a noose and that an employee witnessed the supervisor cutting up the noose. Because these allegations also amounted to substantial encouragement or assistance, the Supreme Court found the plaintiffs sufficiently pleaded claims against both Syncreon and Harley for aiding and abetting under the MHRA.

Final Points

This case raises two important points.  First, the Missouri Supreme Court allowed claims under the Missouri Human Rights Act to proceed, even where the plaintiffs did not directly witness the alleged discriminatory acts, emphasizing that the impact of discriminatory acts may extend beyond those who directly witness them. Second, the Supreme Court spelled out for the first time requirements of an aiding and abetting discrimination claim under Missouri law. On February 13, 2024, the defendants filed a motion for rehearing with the Supreme Court. It is unlikely that motion will be granted. Stay tuned.