BILL NUMBER: S8036

SPONSOR: MAYER
 
TITLE OF BILL:

An act to amend the executive law, in relation to liability for unlawful
discriminatory practices based upon the conduct of an employee or agent

 
PURPOSE OR GENERAL IDEA OF BILL:

To provide a stronger standard for employer liability where an employee
violates certain provisions of the Human Rights Law.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section one of the bill amends section 296 of the executive law by
adding a new subdivision 1-b to establish a standard of employer liabil-
ity where an employee violated subdivision 1 of the section.  This stan-
dard applies to any employer, licensing agency, employment agency, or
labor organization where a) the employee or agent engaging in discrimi-
natory behavior had managerial or supervisory responsibilities, b) the
conduct was carried out by a nonmanagerial employee but the employer
              

knew of the conduct and acquiesced or failed to take corrective action,
or c) the employer should have known of the non-managerial employees
discriminatory conduct and failed to exercise diligence to prevent or
stop such conduct.

Section two sets forth the effective date.

 
JUSTIFICATION:

As federal courts erode protections against workplace discrimination
under federal law, New York has an obligation to strengthen its human
rights law to provide the most robust protection possible for New York-
ers. This legislation provides one such update, strengthening the
employer liability standard when an employee commits an unlawful discri-
minatory practice, and aligning the state law with. New York City Human
Rights Law.

The current standard of employer liability under New York State law was
established in Matter of Totem Taxi v New York State Human Rights Appeal
Bd., 65 NY2d 300, 480 N.E.2d 1075, 491 N.Y.S.2d 293 (1985).  Totem Taxi
established that employers are liable for an employee's discriminatory
acts only if the employer encouraged, condoned or approved the discrimi-
natory conduct. Additionally, the Fourth Department did hold in Father
Belle Community Ctr. v. New York State Div. of Human Rights, 221 A.D.2d
44, 54 (4th Dept. 1996), that an employer may be strictly liable for the
acts of its top executive. The Father Belle standard, even when it is
followed, has led to a lack of clarity among the courts, for example,
factual questions about whether the supervisor in question is "high
level enough." J.S.M. v. City of Albany Dept.  of Gen. Servs., 83 Misc.
3d 1082 (Sup. Ct, Albany CntY. 2025).

Consequentially, under a hostile work environment claim brought pursuant
to Executive Law § 296, an employer may only be liable for the conduct
of its employee only where the employer acquiesced in or condoned the
conduct, or where the employee whose conduct is in question is the high-
est ranking member of management to whom the plaintiff could complain.

This legislation would align the New York State Human Rights Law with
the New York City Human Rights law allowing employer liability when any
of the following conditions are met: a) the employee or agent engaging
in discriminatory behavior had managerial or supervisory responsibil-
ities, b) the conduct was carried out by a non-managerial employee but
the employer knew of the conduct and acquiesced or failed to take
corrective action, or c) the employer should have known of the non-man-
agerial employees discriminatory conduct and failed to exercise dili-
gence to prevent or stop such conduct.

 
LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become a law.