Motta v. Glob. Contract Servs. Inc., No. 15 CIV. 8555 (LGS), 2016 WL 1611489 (S.D.N.Y. Apr. 21, 2016) is instructive on the “aiding and abetting” liability provisions of the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL).
Plaintiffs worked as call center representatives at Global Contract Services, Inc. (GCS). The New York City Transit Authority (NYCTA) and Metropolitan Transportation Authority (MTA) run Access-A-Ride, a paratransit bus and taxi program which provides transportation to disabled persons. NYCTA awarded a contract to GCS to operate the paratransit call center. One plaintiff (a Hispanic woman) alleged discriminatory pay and retaliatory discharge; other plaintiffs alleged sexual harasssment (hostile work environment) and retaliatory discharge.
The court held that plaintiffs “fail to plead a colorable claim against the NYCTA or the MTA for aiding and abetting liability under the NYSHRL or the NYCHRL.”
It outlined the law of “aiding and abetting” liability:
NYCHRL section 8-107(1) makes it unlawful “[f]or an employer or an employee or agent thereof” to discriminate against someone based on that person’s “age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status.” NYCHRL § 8-107(1). The NYSHRL contains a similar prohibition. See NYSHRL § 296(1). Both statutes make it unlawful to “aid, abet, incite, compel or coerce” discrimination. NYSHRL § 296(6); NYCHRL § 8-107(6). Assuming that discriminatory conduct occurred, a person may be liable for aider and abettor liability if he “actually participates in the conduct giving rise to a discrimination claim.” Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004) (internal quotation marks omitted). “The same standards of analysis used to evaluate aiding and abetting claims under the NYSHRL apply to such claims under the NYCHRL because the language of the two laws is ‘virtually identical.”’
In dismissing plaintiffs’ claims, the court explained:
The NYCTA and the MTA are not Plaintiffs’ employers or supervisors, and do not otherwise exercise control over Plaintiffs’ workplace. Instead, Plaintiffs argue that the NYCTA and the MTA “actually participated” in the alleged discrimination. Plaintiffs assert that the contract with GCS “affirmatively requir[ed] GCS to pay Plaintiffs (Agents at GCS) between $14.11 and $15.05 an hour,” and to comply with all applicable laws, including those prohibiting employment discrimination. According to Plaintiffs, “MTA/NYC … utterly repudiated all responsibility when GCS squarely breached these Contract terms,” and “allowed GCS’s discriminatory conduct in breach of the Contract to continue despite the fact that Plaintiffs complained directly to MTA/NYCTA.” *3 Plaintiffs’ attempt to recast the alleged inaction on the part of the NYCTA and the MTA as “actual participation” is unavailing. Neither complaint contains any allegation of these defendants’ direct involvement in GCS’s discriminatory pay practices, sexual harassment or retaliation. The NYCTA’s and the MTA’s alleged failure to take steps to correct or address accusations of discrimination against one of their contractors is insufficient to plead actual participation, as required under governing state and city law. See, e.g., Hargett v. Metro. Transit Auth., 552 F. Supp. 2d 393, 408 (S.D.N.Y. 2008) (dismissing claim where “plaintiff alleges only that the defendants failed to take an action with respect to his complaints, without alleging any facts tending to suggest that they were actually required to do so”).
Nothing in the contract with GCS creates a duty for the NYCTA or the MTA to act on behalf of Plaintiffs to ensure GCS’s compliance with the contractual terms. Even accepting that the Access-A-Ride contract with GCS prohibits GCS from engaging in unlawful discrimination against its employees, Plaintiffs have not pleaded any contractual provision — and the Court has found none — that would impose on the NYCTA or the MTA an affirmative duty to remedy such conduct.
Because Plaintiffs have failed to allege that the NYCTA or the MTA actually participated in discriminatory conduct in violation of state or city law, their claims against these defendants are dismissed.