In Geffner v. Quanta Services, Inc., 2018 WL 6807388 (S.D.N.Y. 2018), the court, inter alia, found that plaintiff failed to state claim(s) of employment discrimination – based, e.g., on his religion – against his supervisor (Austin).
The decision is instructive as to how and when individual liability for employment discrimination may be imposed under 42 U.S.C. section 1981, the New York State Human Rights Law, and the New York City Human Rights Law.
As to Section 1981, the court explained that “[u]nder § 1981, personal liability of a defendant may not be predicated solely on a position of seniority” and that “[i]nstead, individuals may be liable under Section 1981 [only] if they were personally involved in [the alleged] discrimination.” Plaintiff did not make this showing with respect to the individual defendant.
As to the NYS Human Rights Law, the court explained:
Geffner also fails to state a claim against Austin under the NYSHRL. It is true that the New York Court of Appeals has suggested that an individual defendant may be liable as an “employer” under the NYSHRL if the individual is “shown to have any ownership interest [in the offending entity] or any power to do more than carry out personnel decisions made by others.” Patrowich v. Chem. Bank, 63 N.Y.2d 541, 542 (1984) (per curiam). But such an “employer is never strictly liable for the conduct of employees, even if the harassing employee is a Plaintiff’s supervisor.” Marchuk v. Faruqi & Faruqi, LLP, 100 F. Supp. 3d 302, 307 (S.D.N.Y. 2015) (citing Human Rights ex rel. Greene v. St. Elizabeth’s Hosp., 66 N.Y.2d 684, 687 (1985)). Rather, to state a claim against Austin as an individual employer under the NYSHRL, Geffner would need to have alleged facts sufficient to establish that Austin not only qualifies as one of Geffner’s “employers,” but also that he had “encouraged, condoned, or expressly or impliedly approved” the discriminatory conduct at issue in this case. See id. Because Geffner has not done so, his NYSHRL claims against Austin must be dismissed as well.
Finally, as to the NYC Human Rights Law, the court explained:
While the New York Court of Appeals has interpreted the NYCHRL as subjecting corporate employers to strict liability for the conduct of their managerial employees, see Zakrzewska v. New Sch., 14 N.Y.3d 469, 480–81 (2010), courts in this District have reasoned that “the [NYCHRL] is not so broad that it imposes strict liability on an individual for simply holding an ownership stake in a liable employer.” Marchuk, 100 F. Supp. 3d at 308 (emphasis added). Instead, “when courts permit cases to proceed against individuals under the NYCHRL, it is because ‘they participate in the conduct giving rise to a discrimination claim.’ ” Id. (quoting Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004)). The individual defendant’s level of participation need not have been major, as courts permit individual liability in cases involving only “some minimal culpability” on the part of the individual, such as a “supervisor’s failure to take adequate remedial measures.” Id. at 309 (second quoting Lewis v. Triborough Bridge and Tunnel Auth., 77 F. Supp. 2d 376, 384 (S.D.N.Y. 1999)). But here, because Geffner makes no allegations at all regarding Austin’s individual culpability, he has failed to state a claim against Austin under the NYCHRL.