Bowling v. 220 W. 42nd St., LLC, 104717/09 (Sup. NY July 7, 2011):
Plaintiffs, two homosexual males, were allegedly physically and verbally threatened by two security guards after kissing in a McDonald’s restaurant. It was undisputed that defendant 220 maintained, and that the defendant security guards were employed by, the restaurant where the incident occurred. The court found that plaintiffs stated a cause of action under New York Executive Law 296(2), the section of New York’s Human Rights Law which prohibits discrimination in public accommodations.
In denying defendant’s CPLR 3211(a)(7) motion and allowing plaintiffs’ claims to proceed, the court applied the principle that
“Under the Executive Law, [a]n employer cannot be held liable for an employee’s discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it. Although an employer’s calculated inaction in response to discriminatory conduct may, as readily as affirmative conduct, indicate condonation, condonation contemplates a knowing, after-the-fact forgiveness or acceptance of an offense. Therefore, only after an employer knows or should have known of the improper conduct can it undertake or fail to undertake action which may be construed as condoning the improper conduct. …
If an employer fails even to discipline an employee in response to that employee’s discriminatory conduct, the employer may be found to have condoned such improper conduct.”
Notably, defendant owner failed to produce evidence – supporting its denial of plaintiffs’ allegation that defendants either actively participated in the improper conduct or condoned it – “such as proof of a non-discriminatory policy being in place prior to the incident … or discipline of the guards who actually perpetrated the alleged improper conduct.”
The court granted defendant owner’s motion to dismiss plaintiff’s claims brought under Executive Law 296(13) (as there were no allegations regarding boycotting or blacklisting) and for intentional infliction of emotional distress (as being time-barred).
The court also denied defendant security company’s motion to dismiss plaintiff’s claims under New York Executive Law 296(2). The cases cited by the security company did not address respondeat superior in the context of that statute and indeed “impose specific obligations on employers when confronted with discriminatory acts perpretrated by their employees, separate and distinct from vicarious liability pursuant to the doctrine of respondeat superior.” As there was no evidence that the security company “did not condone the improper actions of” its security guards, it “may be liable for its own inaction.”
Finally, the court granted the security company’s motion to dismiss plaintiffs’ IIED claim, as the alleged insults (though vile and containing the epithet “faggot”) were claimed to last only for five minutes, not the “continued and ongoing campaign of intimidation” demanded by the case law.
Take-away points for employers: have a non-discriminatory policy in place, and be sure to discipline employees accused of discriminatory conduct.