In Bailey v. The Brooklyn Hospital Center (NY Sup Ct. NY Cty. Index No. 160752/2013 (Jan. 5, 2017), the court dismissed plaintiff’s sexual harassment claim under the New York City Human Rights Law on the ground that Brooklyn Hospital Center was not vicariously liable for the actions of the alleged harasser.
Vicarious liability under the NYCHRL is governed by N.Y.C. Admin. Code § 8-107(13), which provides (in relevant part):
An employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of [N.Y.C. Admin. Code §§ 8-107(1) or (2)] only where:
(1) The employee or agent exercised managerial or supervisory responsibility; or
(2) The employer knew of the employee’s or agent’s discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action; an employer shall be deemed to have knowledge of an employee’s or agent’s discriminatory conduct where that conduct was known by another employee or agent who exercised managerial or supervisory responsibility; or
(3) The employer should have known of the employee’s or agent’s discriminatory conduct and failed to exercise reasonable diligence to prevent such discriminatory conduct.
Addressing subdivision (1), the court noted that “[t]he record supports the Hospital’s contention that [alleged harasser] Lopez did not have the authority to hire, fire, promote, demote, discipline or transfer another employee” as well as plaintiff’s testimony that Lopez held the same position as her.
In finding that sections (2) and (3) were not satisfied, the court noted (inter alia) that “the Hospital established that it did not have notice of any sexually harassing complaints of Lopez at the various times he sexually harassed the Plaintiff.”