Court of Appeals Clarifies Standard for Individual Liability as “Employers” for Discrimination Under the New York City Human Rights Law

In Doe v. Bloomberg, L.P., et al., 2021 N.Y. Slip Op. 00898, 2021 WL 496608 (N.Y. Ct. App., Feb. 11, 2021), the New York Court of Appeals affirmed a First Department decision declining to impose vicarious liability on defendant Michael Bloomberg, under the New York City Human Rights Law, for the alleged harassment committed by an employee of Bloomberg L.P. against plaintiff.

From the decision:

[W]here a plaintiff’s employer is a business entity, the shareholders, agents, limited partners, and employees of that entity are not employers within the meaning of the City HRL. Rather, those individuals may incur liability only for their own discriminatory conduct, for aiding and abetting such conduct by others, or for retaliation against protected conduct (Administrative Code of City of N.Y. § 8–107[1], [6], [7] ). This rule aligns with the structure of the City HRL and comports with the Court’s interpretation of similar language in Patrowich. It is also consistent with the principles of vicarious and limited liability governing certain business structures (see e.g. Partnership Law §§ 26, 121–303; Limited Liability Company Law § 609; Business Corporation Law § 719).

The City HRL specifically imposes primary liability on employees and agents for some discriminatory acts (see e.g. id. § 8–107[1][a] [making it unlawful for “an employer or an employee or agent thereof” to discriminate based on gender] ) but conspicuously does not impose vicarious liability on these individuals under section 8–107(13)(b) (see Patrowich, 63 N.Y.2d at 543 [use of “employee” and “agent” elsewhere in State HRL indicated that those individuals were not included in the term “employer”] ). Furthermore, the vicarious liability provision itself applies when “the employee or agent exercised managerial or supervisory responsibility” (Administrative Code of City of N.Y. § 8–107[13][b][1] ), differentiating between the liable party (employer) and the party committing the offending conduct (employee or agent with managerial or supervisory responsibility). Similarly, the legislature chose to make an “owner, … manager, … agent or employee” of a place of public accommodation (see id. § 8–107[4][a] ) and the “owner … of a housing accommodation” (id. § 8–107[5][a] ) directly liable for discrimination, but again did not make those categories of individuals subject to vicarious liability as employers under section 8–107(13)(b). These differences in the statutory provisions demonstrate that employees, agents, and others with an ownership stake are not employers within the meaning of the City HRL[.]

Applying the rule, the court held:

[P]laintiff has failed to allege that Bloomberg is her employer for purposes of liability under the City HRL. Her allegations concerning his position at the company demonstrate only that he is an owner or officer of Bloomberg L.P. Additionally, plaintiff’s allegations that Bloomberg fostered a culture of discrimination and sexual harassment at Bloomberg L.P., based primarily on news articles and reports of a deposition in an unrelated case, do not transform him into an employer for purposes of vicarious liability for Ferris’s discriminatory conduct. Any claims that Bloomberg engaged in offending conduct against plaintiff by discriminating, aiding and abetting discrimination, or retaliating are not advanced in this appeal.

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