Court Ponders Individual Liabilty for Race Discrimination Under NYS Human Rights Law

In Johnson v. County of Nassau (EDNY Jan. 30, 2015), the Eastern District of New York explained and applied Section 296(6) of the New York State Human Rights Law (NYSHRL), which makes it an unlawful discriminatory practice “for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under [the NYSHRL], or attempt to do so.”

In this regard, state law differs markedly from Title VII of the Civil Rights Act of 1964, which does not provide for individual liability.

In Johnson, plaintiff asserted employment discrimination claims against various defendants, including the County of Nassau and various individuals (including, as relevant here, Officer Manny DaSilva) in their individual and official capacities.

In a September 22, 2014 Order, Judge Bianco dismissed plaintiff’s NYSHRL claims against the County and all individual co-defendant employees (except for defendant DaSilva) because plaintiff failed to file a notice of claim. As to DaSilva, however, the court held that summary judgment was improper, since plaintiff “raised a triable issue of fact as to whether DaSilva personally participated in the creation of a racially hostile work environment.”

DaSilva moved for “reconsideration” – the legal equivalent of a “do over” – “based solely on his legal contention that a claim against him under Section 296(6) of the NYSHRL can survive only if a valid related claim exists against his employer and/or fellow employees.”

The court denied that motion, reasoning:

[I]t is well settled that an individual employee can “aid and abet” his own conduct in violation of the NYSHRL, in the sense that a defendant can be held liable for aiding and abetting his employer’s creation of a hostile work environment even where his conduct alone serves as the predicate for the employer’s vicarious liability. Moreover … the dismissal of an NYSHRL claim against an employer on procedural grounds does not negate a related claim against a lone employee for conduct in his individual capacity, because a plaintiff may still prove the employer condoned that conduct even though the employer is not a defendant.

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