Company’s Alleged Failure to Investigate Discrimination Complaint Supported “Aiding and Abetting” and Retaliation Claims

A recent Eastern District decision, Delisi v. National Ass’n of Professional Women, illustrates the circumstances under which an individual defendant – here, defendant’s general counsel – may be liable under the “aiding and abetting” and retaliation provisions of the New York State Human Rights Law (NYSHRL).

Generally, plaintiff asserted that she was subjected to sexual harassment, and that defendant’s general counsel failed to investigate her claims. The court addressed only the general counsel’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). It denied the motion, and permitted plaintiff’s claims to proceed.

The law provides:

Section § 296(1) of the NYSHRL states that it is unlawful for an employer to discriminate on the basis of, inter alia, race, creed, color, national origin, sexual orientation, sex or disability. Section § 296(6) states it is “an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article.” Section 296(7) makes it an “unlawful discriminatory practice to retaliate or discriminate against any person because he or she has opposed any practices forbidden under this article …” While there is no claim for individual liability under Title VII, defendants may be held individually liable under the [NYSHRL].

According to the Second Circuit …, a supervisor is an “employer” and liable under the NYSHRL if that supervisor actually participates in the conduct giving rise to [the] discrimination. In addition, a non-supervisor, or co-worker, may be liable for discrimination, even if they lack the authority to hire or fire the plaintiff, if that person “aid[s], abet[s], incite[s], compel[s] or coerce[s] the doing of any of the acts forbidden under this article, or attempt to do so.” This language has been interpreted to extend liability to any individual defendant who actually participates in the conduct giving rise to a discrimination claim.

To state a claim for retaliation under NYSHRL § 296(7), a plaintiff must establish that that (1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action.

Defendant argued that plaintiff did not sufficiently allege that defendant general counsel, Chris Wesser, aided or abetted, or “actively participated,” in any acts of discrimination or retaliation, and that his alleged failure to investigate or respond to plaintiff’s complaints is not an “adverse employment action” as required to support a retaliation claim.

The court rejected this argument:

[T]he allegations against Wesser, which must be taken as true for the purposes of this motion to dismiss, state that DeLisi first complained to Wesser, the general counsel, about the sexual harassment she suffered in June 2012. Those complaints were ignored and the harassment continued until DeLisi took a medical leave in July 2012, filing a letter with the EEOC soon thereafter. Upon DeLisi’s return in January 2013, the alleged harassment continued, and this time when DeLisi complained to Wesser, she was called a “liar” and no action was taken. Plaintiff argues this was in retaliation for, and separate from, her earlier complaints. Assuming these facts to be true, the Court finds that they sufficiently allege that Wesser “actively participated” in conduct of discrimination or retaliation to support an aiding and abetting claim under § 296(6).

It also cited cases for the proposition that a failure to investigate can constitute “active participation” to support an “aiding and abetting” claim.

Next, the court rejected defendant’s argument, based on the Second Circuit’s decision in Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712 (2d Cir. 2010), that the alleged “failure to investigate” cannot support plaintiff’s retaliation claim because it is not an “adverse employment employment action.”

Although Fincher held that “an employer’s failure to investigate a complaint of discrimination cannot be considered an adverse employment action taken in retaliation for the filing of the same discrimination complaint,” it was distinguishable from the instant case:

Plaintiff alleges that she repeatedly complained in 2012, including to this Defendant, left on a medical leave, filed a complaint with the EEOC, returned to work in January 2013, and then complained again to this Defendant. She alleges that the failure to investigate following her return to work in January 2013 was in retaliation of her earlier complaints. The Court finds that these facts are distinguishable from those in Fincher, and notes that court stated “[w]e do not mean to suggest that failure to investigate a complaint cannot ever be considered an adverse employment action for purposes of a retaliation claim. It can be if the failure is in retaliation for some separate, protected act by the plaintiff.” Such is the case here.

Finally, the court rejected defendant’s argument that Wesser was not a supervisor, or someone with authority to remedy plaintiff’s complaints, noting that he “was the General Counsel, and Plaintiff alleges he invited her to ‘turn to him’ if she had any work-related concerns, presumably so he could address them.”

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