In Omyla v. Smiletech, Inc., No. 517483/2021, 2022 WL 524944 (N.Y. Sup Ct, Kings County Feb. 14, 2022), the court, inter alia, denied the individual defendant’s (Ifraim Agababayev) motion to dismiss discrimination and harassment claims asserted under the New York State and City Human Rights Laws.
In this case, plaintiff (a dental technician) asserts causes of action for gender discrimination, sexual harassment, and failure to pay wages.
The court explained the black-letter law concerning when an individual may be subject to liability under the New York Sate and City Human Rights Laws:
If the plaintiffs employer is a business entity, the individual owners, shareholders, limited partners, agents, and employees of that entity are not considered employers within the meaning of the City HRL, and the vicarious liability provisions of the City HRL do not extend to these individuals. Rather, liability may be imposed on these individuals “for their own discriminatory conduct, for aiding and abetting such conduct by others, or for retaliation against protected conduct
Applying the law to individual defendant Ifraim, the court explained:
First, contrary to defendant’s argument, the plaintiff in opposition sufficiently alleges facts that indicate that Ifraim and the corporate defendants were her employer for purposes of liability under the City HRL. Specifically indicating that while she received a “ 1099” from defendant SmileTech, she was also paid by Ifraim directly for work she performed. Since it cannot be determined, at this pre-discovery stage, whether plaintiff was only employed by the corporations, or was also employed by Ifraim personally dismissal is not warranted.
Further, the complaint, amplified by plaintiff’s affidavit, sufficiently states a claim for vicarious liability against Ifraim as an “employer” under the City HRL, based on the allegations of Shalmu’s conduct in violation of the code provisions, and the allegations that Shalmu “exercised managerial or supervisory responsibility” at the workplace and over plaintiff. As well as the additional allegations that Ifraim was aware of the discrimination/harassment that plaintiff suffered throughout the course of her employment and that he created and maintained the discriminatory work conditions and hostile work environment (see Admin. Code of City of N.Y. § 8-107[b]).
The State HRL, however, does not impose vicarious liability on employers for the discriminatory acts of their employees (see Totem Taxi, 65 NY2d 300 ). Rather, an employer may incur liability under the State HRL only if it became a party to the discriminatory act by “encouraging, condoning or approving it” (Totem at 305). Here, the allegations of the plaintiff are sufficient to maintain a claim against Ifraim as an “employer” under the State HRL at this juncture. It can be inferred that Ifraim condoned the discrimination/harassment as it is alleged that he was directly aware of Shalmu’s continuing conduct, and maintained the discriminatory work conditions and hostile work environment (see Ajoku v New York State Office of Temporary and Disability Assistance, 198 AD3d 437 [1st Dept 2021]).
Finally, the State HRL and City HRL both provide, in identical language, that it is an unlawful discriminatory practice “for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden” by the Law (see N.Y. Exec. Law § 296(6); Admin. Code of the City of N.Y. § 8-107). Here, based on the allegations that Ifraim was aware of Shalmu’s longstanding acts of discrimination/harassment, and yet maintained the discriminatory working conditions and hostile work environment, plaintiff sufficiently states a claim against Ifraim, individually, under the State HRL and City HRL for aiding and abetting in discrimination (see Feingold v New York, 366 F.3d 138 [2d Cir. 2004] [the failure to investigate or take appropriate remedial actions despite being aware of the existence of the conduct may lead to personal liability under the City and State HRLs]).
Accordingly, the court denied defendant Ifraim’s motion to dismiss in all respects.