NY Appellate Court Reinstates Sexual Harassment Claims; Explains Imposition of Individual Liability Under the State and City Human Rights Laws

In Ananiadis v. Mediterranean Gyros Prods., Inc., 2017 NY Slip Op 05058 (N.Y. App. Div. 2d Dept. June 21, 2017), the court held that the lower court erred by dismissing plaintiffs’ aiding-and-abetting sexual harassment, and retaliation, claims under the New York State and City Human Rights Laws.

The court summarized the plaintiffs’ allegations:

The plaintiffs alleged that they were each sexually harassed by the defendant Vasilios S. Memmos, the president and a shareholder of Mediterranean. The plaintiffs Mirela Peraica and Gul Karan alleged that they informed their respective supervisors, the defendants Amalia Malamis and Ioannis Mavridopoulos, of the conduct, but that Malamis and Mavridopoulos failed to take appropriate measures to protect them from further harassment. Karan further alleged that she experienced adverse impacts to her employment in retaliation for rebuffing Memmos’s advances, and that she was terminated in retaliation for joining the instant action and filing a criminal complaint against him.

The court summarized the law of individual liability under the statutes:

An employee who did not participate in the primary violation itself, but who aided and abetted that conduct, may be individually liable based on those actions under both the NYSHRL and the NYCHRL (see Executive Law § 296[6]; Administrative Code § 8-107[6]). The NYSHRL and the NYCHRL each provide that it is “an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden [thereunder], or to attempt to do so” (Executive Law § 296[6]; Administrative Code § 8-107[6]). Where a defendant provided, or attempted to provide, assistance to the individual or individuals participating in the primary violation, he or she may be found liable for aiding and abetting discriminatory conduct (see Jews for Jesus v Jewish Community Relations Council of N.Y., 79 NY2d 227, 233).

“[T]he law is clear that a supervisor need not make derogatory comments or unwelcome sexual advances to subject himself or herself to liability under the [NYSHRL]. Rather, . . . a supervisor’s failure to take adequate remedial measures can rise to the level of actual participation’ under [the NYSHRL]” (Lewis v Triborough Bridge & Tunnel Auth., 77 F Supp 2d 376, 383 [SD NY] [citations omitted]). Indeed, a failure to conduct a proper and thorough investigation or to take remedial measures upon a plaintiff’s complaint of discriminatory conduct is sufficient to impose liability on an aiding and abetting theory.

Applying the law, the court held:

Here, the evidence submitted by the defendants failed to demonstrate, prima facie, that Mavridopoulos and Malamis acted appropriately in response to the complaints of Karan and Peraica, respectively, and, thus, that they did not aid and abet Memmos’s allegedly discriminatory conduct. While the parties’ deposition testimony demonstrates that Karan and Peraica complained of unlawful conduct on the part of Memmos on at least one occasion each, Mavridopoulos and Malamis failed to respond to those complaints in accordance with the sexual harassment policy of Mediterranean, despite their awareness and understanding of the policy. Moreover, the defendants failed to submit evidence demonstrating that the actions taken by Mavridopoulos and Malamis were appropriate and sufficient. Their submissions, therefore, demonstrated that issues of fact exist as to whether any actions or remedial measures undertaken by Mavridopoulos and Malamis were adequate

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