Individual Liability For Sexual Harassment Requires Participation, Court Holds

In New York, particularly New York City, employees are protected against discrimination (including sexual harassment and retaliation) by various laws, including Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.

Although these laws are similar in some respects, they differ in others. One key difference between them is that while Title VII does not provide for individual liability, the New York State and City Human Rights Laws do provide for individual liability in certain circumstances. A recent case, Zach v. East Coast Restoration & Construction Consulting Corp., No. 15 CIV 0007 NRB, 2015 WL 5916687 (SDNY Oct. 7, 2015), addresses those circumstances.

In Zach, plaintiff, who was hired by defendants as a bookkeeper, alleges that while employed by defendant East Coast, she was subjected to sexual harassment (rape) by defendant “GS” (her supervisor and an officer, director, and owner of defendant). She sought to add East Coast’s president, Maiber Polanco, as an individually-named defendant.

Judge Buchwald denied her request, explaining:

[P]laintiff’s Proposed Amended Complaint does not allege any knowledge, participation, or involvement whatsoever by Polanco in the alleged sexual misconduct, discrimination, and retaliation detailed in the Complaint. Indeed, the only place Polanco is mentioned by name is to identify him as a party. Moreover, Polanco’s sworn statement, which plaintiff cites in her letter to suggest his involvement, shows just the opposite: that Zach never brought to his attention improper conduct by an East Coast employee.

Plaintiff is correct that an individual may be liable for discrimination in violation of the New York State and New York City Human Rights Laws as an “employer,” see N.Y. Exec. Law § 296(1) , and that New York law defines “employer” in this context as someone having “any ownership interest or any power to do more than carry out personnel decisions made by others,” Patrowich v. Chemical Bank, 63 N.Y.2d 541, 543–44 (1984).

A literal reading of this definition would mean that a plaintiff could add any supervisor or owner of the alleged liable corporation, regardless of what that prospective defendant knew or did. Such a broad and counter-intuitive result is unreasonable. Instead, the caselaw requires some allegation of participation by the individual. (Emphasis added.)

The court therefore denied plaintiff’s request to add Polanco as an individual defendant.

It also granted plaintiff’s (apparently unopposed) request to add specific quid pro quo sexual harassment language to her complaint.

Here is plaintiff’s amended complaint filed in light of this ruling.

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