In Delancey v. Justin Wells, Fox Corporation, & Fox News Network, LLC, No. 23 CIV. 10357, 2026 WL 2689395 (S.D.N.Y. Sept. 14, 2026), a sexual harassment case, the court, inter alia, discussed and applied the vicarious liability provision of the New York City Human Rights Law, specifically N.Y.C. Admin. Code § 8-107(13)(b)(1), which provides that “an employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent only where the employee or agent exercised managerial or supervisory responsibility.” (Cleaned up.)
From the decision:
There is a triable issue of fact concerning whether Wells exercised “managerial or supervisory responsibility” over Delancey under subsection (b)(1) of the NYCHRL. This prong functions like a strict liability provision, imposing liability on employers for the actions of their employees regardless of whether the employer knew or should have known of the assault.
Courts are divided as to what is required to show that an employee “exercised managerial or supervisory authority” over another employee for purposes of the NYCHRL. In the Title VII context, the Supreme Court has held that employers are only strictly liable for the actions of employees if those employees are empowered to “take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’ ” Vance v. Ball State Univ., 570 U.S. 421, 431 (2013) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)); see ECF No. 54 at 11–12 (applying this standard for a Title VII claim). FNN argues, correctly, that several courts have applied this standard to subsection (b)(1) of the NYCHRL: At least two district courts in this Circuit have quoted and applied Vance to deny claims under the NYCHRL where a plaintiff sought to hold an employer liable for another employee’s discrimination. See Mejia v. City of New York, No. 17 Civ. 2696, 2020 WL 2837008, at *16 (E.D.N.Y. May 30, 2020) (“While the term ‘managerial or supervisory authority,’ is not defined in NYCHRL, this concept is broadly understood in the context of employment discrimination claims to refer to an individual employee’s authority to ‘take tangible employment actions against the victim ….’ ” (quoting Vance, 570 U.S. at 431)); Castillo v. Isakov, No. 22 Civ. 6888, 2023 WL 6664552, at *7 (S.D.N.Y. Oct. 12, 2013) (same); Mem. at 10.
But the NYCHRL’s text does not explicitly require this standard, and Title VII caselaw does not bind the Court’s interpretation of the NYCHRL “in light of [its] remedial purposes.” Fornuto v. Nisi, 84 A.D.3d 617, 617 (N.Y. App. Div. 2011); see also Williams v. N.Y.C. Housing Auth., 61 A.D.3d 62, 66 (N.Y. App. Div. 2009). Given that the NYCHRL provides that “[t]he provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal … human rights laws, … have been so construed,” N.Y.C. Admin. Code. § 8-130(a), some New York courts have interpreted subsection (b)(1) to render employers liable for the conduct of offending employees who have “authority to direct the [victim’s] daily work activities.” Cajamarca v. Regal Entm’t Grp., No. 103027/12, 2013 WL 5717119 (Sup. Ct. Oct. 17, 2013) (slip op.) (citation omitted); see also O’Neil v. Roman Catholic Diocese of Brooklyn, No. 6189/07, 31 Misc. 3d 1219(A), 2011 WL 1587753, at *9 (Sup. Ct. Kings Cnty. Apr. 27, 2011).
The Court finds Cajamarca’s standard more appropriate.5 The “authority to direct the employee’s daily work activities” standard better accomplishes the “broad” and “remedial” purpose of the NYCHRL than the more restrictive Title VII standard, which is merely “a floor below which the [NYCHRL] cannot fall.” Williams, 61 A.D.3d at 66. The standard also comports with the NYCHRL’s text, which imposes liability when employees exercise “managerial or supervisory responsibility” over other employees. N.Y.C. Admin. Code § 8-107(13)(b)(1). Authority to direct an employee’s daily work activities is a classic example of “managerial … responsibility.” This textual hook renders the NYCHRL different from Title VII, where courts have derived vicarious liability not from Title VII’s statutory text, but from agency principles. See Burlington, 524 U.S. at 755–65; see also Vance, 570 U.S. at 436–42. Last, although the standard is broader than the federal standard, it is familiar to courts in this Circuit, as courts routinely applied this standard to vicarious liability claims under Title VII law prior to the Supreme Court’s decision in Vance. See, e.g., Mack v. Otis Elevator Co., 326 F.3d 116, 127 (2d Cir. 2003).
Applying this standard, Delancey has shown that there is at least a triable issue of fact as to whether Wells had authority to direct his “daily work activities.” When Delancey worked for Fox News Edge, he testified that he had “[d]aily” contact with individual producers on FNN shows who would directly request content from him. Delancey Dep. 20:16–22:10. Wells, as one of these producers, contacted Delancey “about two times a week with assignments for him to complete.” 56.1 ¶ 191; Delancey Dep. 48:10–21, 51:1–4, 172:25–175:3. Furthermore, Delancey has stated that Wells’ assignments would be “time sensitive” and often “require[ ] an immediate turnaround.” Delancey Decl. ¶ 17; 56.1 ¶ 193. Wells’ assignments thus “took priority over all of [Delancey’s] other work and could take anywhere between [ ] half an hour and an hour to complete.” Delancey Decl. ¶ 18. Taken together, and viewed in the light most favorable to Delancey, a reasonable juror could conclude that Wells had actual authority to direct Delancey’s daily work activities.
To be sure, the evidence is not unequivocal. As FNN highlights, Delancey’s formal duties did not include “helping Fox News Channel television shows” like Wells’, 56.1 ¶ 43, and the record does not show that Wells had the authority to promote, reassign, or significantly alter the scope of Delancey’s work responsibilities—or, for that matter, to fire him, see Reply at 3–4; 56.1 ¶ 56(e).
The court concluded that “the relative weight of this evidence and the ultimate question of whether assigning high-priority work to Delancey a ‘couple of times a week’ constitutes the ‘exercise’ of ‘managerial or supervisory responsibility’ over Delancey is a question of fact for the jury.”