In my December 12, 2016 post, I explained that, in New York, hostile work environment harassment involves conduct so objectively offensive as to alter the conditions of the victim’s environment, which is subjectively perceived as hostile or intimidating. This post discusses the circumstances in which a company in New York may be held liable (that is, legally responsible) for its employee’s hostile work environment harassment claim against a supervisor or a co-worker.
Further, this post explains the circumstances in which a supervisor or a co-worker in New York may be personally liable (that is, monetarily responsible) for aiding and abetting the harassment of another employee.
Employer Liability For Hostile Work Environment Harassment
Under New York State law, employers are liable for unlawful harassment by supervisors where:
- the employer acquiesced in, or condoned, the discriminatory conduct; or
- the employer acquires knowledge after the fact of the discriminatory conduct and takes insufficient investigation or corrective action.
Whether someone is a “supervisor” depends upon whether the authority given by the employer to the employee enables him, or materially augments his ability, to create a hostile work environment for subordinates.
Additionally, an employer will be liable for harassment by a co-worker if the employer provides no reasonable avenue for complaint or knows (or should have known) of the harassment, but failed effectively to correct the situation.
In New York City only, an employer is liable for sexual harassment:
- by a manager or supervisor regardless of whether the employer or another of its managers or supervisors knew or should have known of those acts, and
- by a co-worker provided the employer or a manager or supervisor knew of and acquiesced in, or should have known of, the co-worker’s acts.
Supervisor Liability For Hostile Work Environment Harassment
A supervisor or a co-worker may be personally liable if he or she aids, abets, incites, compels or coerces the harassment of another, or if he or she attempts to do so.
This means a supervisor or a co-worker may have assets seized if involved in harassing conduct.
Examples of aiding and abetting the harassment of another include:
- Participating in harassing conduct.
- Standing by despite knowledge of harassing conduct.
- Failing to refer to investigation.
- “Covering up” harassing conduct.