Discrimination Claims Dismissed Against, and Protective Order Issued Barring Deposition of, Individual Defendant

In Xu v. Omnicom Group Inc., No. 518453/2019, 2022 WL 135325, 2022 N.Y. Slip Op. 30133(U) (N.Y. Sup Ct, Kings County Jan. 06, 2022), the court granted an individual defendant’s (John Wren) motion to dismiss plaintiff’s claims of discrimination based on race (Chinese), national origin (China), disability, and age.

This case is instructive as to when an individual defendant may be subject to liability under the New York State and City Human Rights Laws.

It summarized the law as follows:

With respect to plaintiff’s claims under the NYCHRL, the Court of Appeals recently held that “where a plaintiff’s employer is a business entity, the shareholders, agents, limited partners, and employees of that entity are not employers within the meaning of the City HRL” and are not vicariously liable (Doe v Bloomberg L.P., 36 NY3d 450, 459). Such individuals “may incur liability only for their own discriminatory conduct, for aiding and abetting such conduct by others, or for retaliation against protected conduct”(Id.), citing Administrative Code § 8-107 (1), (6) and (7).

Notably, plaintiff’s complaint did not allege that individual defendant Wren engaged in any discriminatory conduct, that he “aided and abetted” such conduct, or that he retaliated against plaintiff for engaging in protected activity.

The court continued:

With respect to plaintiff’s causes of action under the NYHRL, it has been held that an individual employee may be held liable as an “employer” under the NYHRL when he or she has an “ownership interest or any power to do more than carry out personnel decisions made by others” (see Patrowich v. Chem. Bank, 63 NY2d 541, 543–44; Matter of New York State Div. of Human Rights v. ABS Elecs., Inc., 102 AD3d 967, 969; lv denied 24 NY3d 901 [2014]; Kaiser v. Raoul’s Rest. Corp., 72 AD3d 539, 540; Priore v. New York Yankees, 307 AD2d 67, 74 [1st Dept 2003], lv denied 1 NY3d 504). In light of the recent holding in Doe v Bloomberg L.P., it is unlikely that these cases remain good law (see **4 Park v. Kurtosys Systems, Inc., No. 151068/2018, 2021 WL 4325689, at *13 (N.Y. Sup. Ct. Sep. 23, 2021). Regardless, the Verified Complaint does not allege that defendant Wren has an ownership interest in S+G or that he had any power to control S+G’s affairs. Assuming he did, under the circumstances of this case, absent allegations that he engaged in any discriminatory conduct, or that he aided and abetted in such conduct or that he retaliated against the plaintiff for protected conduct, it would be unwise in imprudent to hold that the complaint sufficiently stated a cause of action against him.

The court concluded that “[s]uch a holding would subject every CEO of a multi-national publicly-held holding company to suit for the discriminating actions of each and every employee in the company as well as its subsidiaries simply because of his or her status as the CEO.”

It also granted defendant Wren’s motion for a protective order barring plaintiff from subjecting him to a deposition (but did permit plaintiff to later seek an order compelling his deposition in the future, if facts surface warranting it.

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