Aiding & Abetting Sexual Harassment Claim, Based on Supervisor Inaction, Survives Summary Judgment

In Nokaj v. North East Dental Management, LLC et al, 16-cv-3035, 2019 WL 634656 (S.D.N.Y. Feb. 14, 2019), the court (inter alia) denied defendant’s motion for summary judgment on plaintiff’s claim of “aiding and abetting” discrimination (sexual harassment) under the New York State Human Rights Law.

The court holds that plaintiff may maintain an “aiding and abetting” claim – under the New York State Human Rights Law, N.Y. Exec. Law § 296(6) – against their supervisor who witnessed, but failed to take appropriate action with respect to, sexual harassment directed at plaintiff.

From the decision:

Plaintiff has created a triable issue of fact with respect to Antonatos’s liability under the statute. Plaintiff argues that because Antonatos, as one of her supervisors, witnessed alleged incidents of sexual harassment by Gelbart and failed to report them to human resources or upper management, she is liable for aiding and abetting the discrimination against Plaintiff. … [M]any courts have denied summary judgment in cases where the defendant’s participation consisted only of a failure to report or address discriminatory conduct of which he or she was aware. … .

Here, construing all evidence in Plaintiff’s favor, Antonatos witnessed two instances of Gelbart allegedly sexually harassing Plaintiff, and received an unspecified number of informal complaints from Plaintiff on the same subject. … Antonatos concedes that she did not report Gelbart’s conduct to anyone more senior to her at Family Dental or to HR, and that this may have violated Family Dental’s sexual harassment policy. … It is for a jury, and not this Court, to weigh the proffered testimony and determine whether the conduct rises to the level of aiding and abetting a primary violation of § 296.[]

The court thus denied defendants’ motion for summary judgment as to plaintiff’s NYSHRL claim against defendant Antonatos under § 296(6).