Recent Oregon Court of Appeals decision clarifies the minimum standard to establish a claim for aiding and abetting
In an opinion issued on November 20, 2024, the Oregon Court of Appeals outlined the required legal standard to state a claim for aiding and abetting under ORS 659A.030(1)(g). The court held the correct standard emulates the criminal law standard as outlined by the Oregon Supreme Court in Granewich v. Harding, 329 Or 47 (1999), incorporating section 876 of Restatement (Second) of Torts. Castillo Rivera v. Perlo, 336 Or App 307, 323 (2024).
ORS 659A.030(1)(g) prohibits acts that “aid, abet, incite, compel or coerce” any unlawful practice. In Granewich, the Oregon Supreme Court clarified the standard for aiding and abetting as requiring proof in one of three ways:
(a) the party does a tortious act in concert with or pursuant to a common design with the other;
(b) the party knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement; or
(c) the party gives substantial assistance to the other in accomplishing a tortious result while its own conduct separately constitutes a breach of duty to the third person.
This clarification is significant, as it confirms that simple awareness or unintended assistance is not enough to establish liability for aiding and abetting under this standard. Rather, the alleging party must show the actor committed a tortious act “in concert” with another party or must have “substantially assisted” another party in committing the tortious act.
A party acts in concert when the parties perform an act that is mutually agreed upon, mutually planned and performed together. A party provides substantial assistance when they are actively complicit and aware that their complicity furthers the tortious objective.
In Rivera, the Court of Appeals found the parties did not focus their arguments on the correct standards set out in Granewich and so remanded back to the trial court. But, for the first time, the Court of Appeals indicated this heightened standard to establish a claim for aiding and abetting under criminal law applies to ORS 659A.030(1)(g). This would help prevent supervisors or other third party actors from being liable for having simple awareness of an unlawful employment action committed by an employer.
While Rivera is a helpful decision for employers and insurers, navigating potential litigation claims is still complex, and often requires the assistance of a civil litigation attorney. If you have any questions regarding an aiding and abetting issue, you can contact me at or at (503) 595-6101.
Posted by Kate Schultehenrich.
