Executive May Be Individually Liable for Sexual Harassment Under New York Human Rights Law
October 23, 2009
Anna Nesterova- Boston
The U.S. District Court for the Eastern District of New York has held that a male corporate executive accused of sexually harassing a female co-worker may be held individually liable as an “aider and abetter” for his own discriminatory acts under the New York State Human Rights Law (NYSHRL), even where he is not an “employer” for the purposes of the NYSHRL, and where his conduct serves as the sole predicate for liability. Maher v. Alliance Mortgage Banking Corp. and Agoglia, 2009 WL 2827682 (E.D.N.Y. Sept. 3, 2009).
The Maher decision is important because it interprets the Second Circuit in Tomka v. Seiler Corp., 66 F.3d 1295 (2d. Cir. 1995) as permitting personal liability against a non-supervisory employee – without the power to hire or fire the plaintiff or make any personnel decisions concerning her employment – for aiding and abetting his own conduct. In doing so, it rejects a line of federal cases following Hicks v. I.B.M, 44 F. Supp.2d 593 (S.D.N.Y. 1999) holding that a primary actor cannot be an aider and abettor of his own actions.
The Law
The NYSHRL provides, in relevant part, that it is an unlawful discriminatory practice “for an employer . . . because of age, race, creed, color, national origin, sexual orientation, military status, sex, disability . . . to bar or discharge from employment such individual in compensation or in terms, conditions or privileges of employment.” In addition it is an unlawful discriminatory practice for any party to, or attempt to, “aid, abet, incite, compel, or coerce the doing of any of the acts forbidden” by the NYSHRL.
The Facts
Jessica Maher had been employed full-time by Alliance Mortgage Banking Corporation (Alliance), first in its accounting and then its bookkeeping department, from the time she graduated high school in July 2004 until her resignation in November 2005. Raymond Agoglia was employed by Alliance as a Sales Manager/Vice President, supervising 12 loan officers, but at no time did he supervise or have the power to hire or fire Maher. Beginning in October 2004 and continuing through September 2005, Agoglia engaged in a pattern of unwelcome sexual behavior toward Maher, including sexual remarks, propositions and offensive touching.
Maher told various co-workers about the incidents and reported them to her supervisor on several occasions. The supervisor told Maher to tell Agoglia to stop and to avoid Agoglia as much as possible; she also said she would look into the matter. Agoglia’s conduct toward Maher continued until Maher reported her complaints to the police for criminal assault and wrote a letter to her supervisor asking what actions had been taken to end Agoglia’s reported sexual misconduct toward her. Only then did her supervisor deliver the letter to Alliance’s Human Resource Director, who made Agoglia apologize to Maher. Shortly thereafter, Maher gave her notice of resignation. In January 2006, Maher filed hostile work environment and retaliation claims under Title VII and the NYSHRL against both Alliance and Agoglia individually, as well as common law claims for intentional infliction of emotional distress and assault. A default judgment was entered against Alliance after it filed for bankruptcy, discharged its counsel and failed to obtain new counsel, leaving the action against only Agoglia.
The Maher Decision
Although dismissing Maher’s Title VII claim against Agoglia on the ground that individuals are not subject to liability under Title VII, the district court found that “the NYSHRL allows the imposition of liability on individual employees in limited circumstances.” Specifically, the court found that Agoglia could be individually liable under the NYSHRL as the aider-and-abettor of his own harassing conduct. In reaching this conclusion, the court relied on the Second Circuit’s decision in Tomka, which held that a co-worker who actually participates in the conduct giving rise to a discrimination claim may be held individually liable as an aider and abettor even where s/he is not an “employer.” Moreover, and most importantly, the court rejected Agoglia’s argument that an individual may not be considered an aider and abettor of his/her own conduct, and extended Tomkato mean an individual may be liable under the NYSHRL for aiding and abetting an unlawful discriminatory practice of his/her employer even where his/her conduct serves as the sole predicate for the employer’s liability.
Having concluded that Agoglia may be held liable for his acts, the court opined that a reasonable jury could conclude that Maher was subjected to a hostile work environment and that Alliance’s response to her complaints was negligent. In addition, though he dismissed her retaliation and intentional infliction of emotional distress claims, the court found that a triable issue of fact remained as to whether Agoglia’s conduct toward Maher amounted to assault.
Practical Impact
The Maher decision is significant primarily because it means that nonsupervisory employees can be individually liable for harassment under the NYSHRL. It thus permits individual discrimination claims to proceed against any co-worker, even those acting alone.
Coupled with recent New York state legislation permitting the imposition of civil penalties against employers and individuals for NYSHRL violations up to $100,000 per violation, employers should reevaluate their employment policies to make sure they clearly prohibit discriminatory conduct and provide adequate internal complaint procedures. In addition, employers should remind employees annually of these policies and make certain they are being reviewed and followed.
The decision also creates tactical problems in litigation. Because the alleged harasser can be held individually liable, the alleged harasser may need his or her own legal counsel. That requirement can increase the costs and burdens of defending against NYSHRL harassment claims.
Maher is likely to evoke a strong reaction from the business community, and it is highly probable that the decision – as well as decisions soon to follow and decisions that cite it as precedent – will be appealed, requiring the Second Circuit to revisit the issue – and this time squarely address it.
About the Editor
Todd D. Steenson
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