New York City Court Applies Law of Agency in Determining Employee’s Standing to Sue Her Employer’s Subcontractor for Sexual Harassment

Employment statutes like Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law (NYCHRL) allow employees to sue their employers for sexual harassment and other unlawful acts. A plaintiff must establish standing to sue, usually by demonstrating an employee-employer relationship. They must also establish that the employer can be held liable for the alleged harassment. New York City law provides several means of holding an employer liable for acts of individual employees, but these provisions still do not take all of the features of the modern workplace into account. A New York City federal court considered whether the NYCHRL authorized an employee to sue a company that was subcontracted to her employer, based on actions by its employee. In other words, the defendant was not the plaintiff’s employer. The court identified circumstances in which the NYCHRL allows this sort of claim. Suarez v. City of New York, et al., No. 1:11-cv-05812, mem. order (E.D.N.Y., Mar. 31, 2015).

Under the common-law concept of agency, a principal is liable for actions by an agent when the agent acts on behalf of the principal. Courts apply the doctrine of respondeat superior in tort cases. This doctrine holds that an employer is only liable for actions undertaken by an employee in the course of that employee’s job duties. The employer of a delivery driver, for example, might be legally liable for damages caused by the driver while making a delivery. A similar principle applies in sexual harassment claims.

The NYCHRL provides that an employer is only liable for “discriminatory conduct by [an] employee, agent or independent contractor” in certain circumstances:

– The offending individual “exercised managerial or supervisory responsibility”;
– The employer had actual knowledge of the conduct but either “acquiesced in such conduct” or failed to act quickly to remedy the situation; or
– The employer “should have known” about the conduct and “failed to exercise reasonable diligence” to mitigate or prevent it. N.Y.C. Admin. Code § 8-107(13)(b).

The Suarez case raises the question of what happens when the plaintiff and the alleged harasser have different employers, but the alleged harasser’s employer is contracted to the plaintiff’s employer. The plaintiff worked as a deckhand on the Staten Island Ferry, making her employer the New York City Department of Transportation (DOT). The alleged harasser worked for a private company contracted by the DOT to provide security services for the ferry. After the plaintiff complained to the DOT, it reportedly conveyed this information to the contractor, and the contractor allegedly reassigned its employee. The plaintiff alleged, however, that the employee continued to behave in a harassing manner toward her.

The plaintiff asserted a single cause of action against the contractor under the NYCHRL for sexual harassment. The court rejected the contractor’s summary judgment argument that the plaintiff lacked standing to sue because it was not her employer, finding that it was an “agent” of her employer. It held that the contractor should be held to the same standard as the DOT regarding the conduct of its employee—i.e., if it knew or should have known about the alleged conduct but failed to act, it could be held liable.

The experienced and skilled sexual harassment attorneys at Phillips & Associates advocate for the rights of New York City job seekers, employees, and former employees in claims of sexual harassment under local, state, and federal laws. Contact us online or at (212) 248-7431 today to schedule a free and confidential consultation to discuss your case.

More Blog Posts:

Sexual Harassment on Staten Island Ferry Endangers the Public, According to Lawsuit, New York Employment Attorney Blog, March 6, 2017

Female Dockworkers Experience Discrimination, Harassment on the New Jersey Waterfront, New York Employment Attorney Blog, December 15, 2011

Staten Island Ferry Deckhands Used Security Cameras for a “Peepshow,” New Lawsuit Claims, New York Employment Attorney Blog, December 7, 2011

Contact Information