Our recent blog post discussed the Vance v. Ball State University case, which the Supreme Court is currently deciding under federal anti-discrimination law. Here in New York City, where we practice, the local anti-discrimination law views these cases very differently. In New York City, if a harasser exercises supervisory or managerial authority, the employer is responsible for her actions. Period. Moreover, at least one state court has held that this standard is relatively broad, including anyone with the authority to direct the employee’s daily work activities.
Also, in New York City, even if a harasser does not exercise supervisory or managerial authority, the employer is responsible for her actions if the victim can prove the employer knew of the discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action OR if the employer should have known of the discriminatory conduct and failed to exercise reasonable diligence to prevent it. It is therefore not necessary, as in federal law, for the employee to prove that she followed the employer’s complaint procedure. In fact, under New York City law, even if the employer has on paper a terrific anti-discrimination policy and complaint procedure, these policies and procedures will not necessarily protect it from liability– they may only serve to reduce or eliminate the employer’s liability for punitive damages.
It’s not always clear whether New York City law applies to a particular employer, and, to be safe, many practitioners advise that all employees utilize an employer’s internal complaint procedure where available. But thanks to the strong public policy behind the New York City Council’s 1991 and 2005 overhauls of the city’s Human Rights Law, it is much easier to hold New York City employers liable for harassing conduct committed by their employees.