The Eastern District’s recent decision in Tate v. Rocketball Ltd (decided 9/18/14) provides some insight into how courts assess discrimination claims arising outside the “typical” employer-employee relationship/setting.
Plaintiff, a gay male, worked for a restaurant. Part of his job duties included bringing food and drinks to the Houston Rockets’ locker room while they were at Barclays Center in Brooklyn. He alleges that, while performing these duties, a number of Houston Rockets players made derogatory comments towards him, such as by calling him a “faggot” and accusing him of “trying to catch a sneaky peaky.” He alleges that he suffered adverse employment consequences, such as not being sent to regular locations at Barclays Center, not being employed in any shift that accrued overtime, being taken off the work schedule, and being inappropriately “written up” by his supervisors.
Plaintiff sued Rocketball – the owner of the Houston Rockets – under the New York City Human Rights Law, which makes it an unlawful discriminatory practice
[f]or an employer or an employee or agent thereof, because of the actual or perceived … sexual orientation … of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment. [NYC Admin. Code § 8-107(1)(a)]
The statute, however, does not define “employer”, and “[e]xpansion by courts of the necessary employer-employee relationship by implication is restrained.”
Here, the court rejected plaintiff’s attempt to hold Rocketball liable under the City Human Rights Law.
Initially, it noted:
An implied discriminatory intent of a third party does not create the equivalent of employer-employee relationship. A known general culture of homophobia does not—at least as the applicable statutory provision has been interpreted to date—translate to a violation of employment discrimination statutes. The power of a third party to prevent slurs does not yet constitute a basis for liability when that power is not exercised.
“Proximate cause” cannot at the present time be established in cases such as the present one—though the definition of “proximate cause” is a matter of public policy that changes to meet the needs of the law and morality in a changed society.
A claimed general culture of homophobia in professional basketball cannot alone, at the present time, support a specific claim against a professional basketball owner or the National Basketball Association.
Next, it held that Rocketball was not plaintiff’s “joint employer”:
Based on the joint employment doctrine, plaintiff claims that Rocketball is an “employer” under Section 8–107(1)(a). He fails to provide more than “conclusory allegations, speculation or conjecture.”
There is no showing that Rocketball was his “joint employer” with Restaurant and exercised “control” or management over him. No evidence is provided that Defendant Rocketball caused the alleged employment discrimination. Plaintiff does not claim that the Rockets had the power to hire or fire any Restaurant employees, that the Rockets had any control over Restaurant employees’ schedules or conditions of employment, or that the Rockets had any say in the rate and method of payment to Restaurant employees. The only specific allegation of control is a single request for salad dressing made of plaintiff by Rocketballs’ players or staff. This is no different than a customer requesting extra salad dressing in a restaurant.
While general civility dictates that customers treat servers with respect, customers and servers do not enjoy an employer-employee relationship under the statute. The NYCHL is not “a general civility code”.
The court also rejected plaintiff’s “aiding and abetting” theory:
Based on the information supplied to date, plaintiff’s claim of aiding and abetting fails. While plaintiff alleges that Rocketball “began the cycle of discrimination[,]” and that Rocketball “incited [d]efendant [Restaurant’s] retaliatory actions”, there is no evidence of a “community of purpose” between Rocketball and Restaurant.
Plaintiff alleges only that Rockets’ players and staff made discriminatory comments, after which Restaurant denied plaintiff the opportunity to work with the Brooklyn Nets or at other events. He does not plead nor proffer any evidence that subsequent discriminatory events involved the Rockets. He offers no explanation as to why the Rockets, who according to defendants, visit New York only a handful of times a year and have no ongoing relationship with Barclays Center, would have an interest in keeping an employee of a food and beverage supplier out of a visiting locker room when the Rockets were not physically in the state. [T]here is no evidence that Rocketball aided and abetted Restaurant’s conduct.
Thus, the court granted Rocketball’s motion for summary judgment. It did, however, stay its order of dismissal for 60 days to permit “discovery with respect to relationship among Rocketball and its employees and Restaurant and its employees.”