Court Grants Plaintiff’s Motion to Compel in Race Discrimination Case Against 643 Broadway Holdings LLC d/b/a Bleecker Kitchen & Co. and Joshua Berkowitz

On December 10, 2011, Michael S. Douglas, Jr. filed a race discrimination complaint in Manhattan Supreme Court against 643 Broadway Holdings LLC(d/b/a Bleecker Kitchen & Co.) and co-owner Joshua Berkowitz.   

The complaint alleges that Berkowitz racially harassed former Bleecker Kitchen & Co. restaurant manager Douglas during his employment with Bleecker.  The complaint further alleges that Berkowitz was not aware that Douglas, who is Filipino and African-American, was black, when Berkowitz, using coded words, counseled Mr. Douglas against hiring black servers.   

On March 2, 2016, the Honorable Eileen A. Rakower ordered Defendants to produce all of the hard copy and electronic documents sought in Plaintiff’s motion to compel, with the exception of documents related to Gold Bar or Defendants’ assets.

The Court further ordered Defendants to provide an affidavit from someone with knowledge of the search conducted concerning requests for which Defendants claim documents do not exist, or are not in Defendants', possession, custody, or control.

The Court’s Order is available here.

The case is Douglas v. 643 Broadway Holdings LLC d/b/a Bleecker Kitchen & Co. et al., Index No. 162179

Mr. Douglas is represented by Cyrus E. Dugger of the Dugger Law Firm, PLLC and James Halter and Asa Smith of Liddle & Robinson L.L.P.

Can I Really Sue My Boss Individually in NYC – And What Does That Really Mean?

One important limitation of Title VII, the federal law that protects most employees at most larger companies from discrimination, is that the law only allows employees to hold the company liable.  

So, if an employee brings a claim because of a manager’s harassment under Title VII, only the company will ever have to directly pay an award of damages to the injured employee.  While the court may impose injunctive requirements on the company that affect the individual harasser, these injunctive requirements nonetheless still fall squarely on only the employer’s shoulders.  

For example, if the offending harasser leaves the organization, they will likely no longer be subject to any court-ordered injunctive requirements.

Of course, there may be internal consequences for the harassing supervisor, but any action taken against the harasser will be at the discretion of the company, not necessarily mandated by law.  While companies are usually not thrilled with supervisors who harass employees and cause them to file discrimination lawsuits, inevitably there are exceptions, where even successful lawsuits do not result in an employer fundamentally addressing issues of discrimination.

Given these limitations, technically a sexual harasser could harass many employees, resign when a lawsuit is filed, and leave without directly paying their victim(s) a single cent.

What’s an aggrieved employee to do?

Fortunately, in New York City and New York State, there are protections beyond those provided under Title VII by way of the New York City Human Rights Law  ("NYC Human Rights Law") and the New York State Human Rights Law.  

This post focuses on the unique aspects of the NYC Human Rights Law, one of the most protective anti-discrimination and retaliation statues in the country.

Under the NYC Human Rights Law, employees who meet the definition of a “supervisor” are personally liable for any discrimination they engage in.

You heard correctly.  Your supervisor may be personally liable, out of their own funds, for discrimination, along with a NYC employer.

Many NYC supervisors and other employees are likely surprised to hear this.  Indeed, it is likely that the vast majority of supervisors and other employees are unaware that this is the case in NYC.

This provision should certainly give all current and potential “supervisors” great pause with respect to their conduct in the office.   If their actions result in a lawsuit alleging discrimination or retaliation an employee, perhaps one who has no issue with the larger company -- only the specific supervisor -- could technically decide to only sue the supervisor in their personal capacity.  

While an employee is unlikely to take that route where he or she is not certain the supervisor (as opposed to the employer) could actually satisfy any judgment given their financial resources, this fact is something NYC supervisors are well-advised to keep in mind during their interactions in the workplace.

The protections of the NYC Human Rights Law not only include potential relief against individual supervisors, but, importantly, the standard for discrimination violations is also far more liberal than Title VII, making it much more likely that an employer and/or supervisor will be found liable for discrimination with respect to identical conduct.   

By way of example, in NYC, a supervisor can potentially find themselves liable for an employee’s emotional distress damages, as well as attorney’s fees and costs, by making a single harassing discriminatory statement to an employee.  

Each side may then certainly litigate the appropriate amount of emotional distress damages, but, in any event, the employee will, in many  circumstances, have an argument that the employer and/or supervisor are personally liable to them for emotional distress damages.

New York City is not only a unique place to live, it has a uniquely protective regime of anti-discrimination and anti-retaliation laws  that put employees on, at least, less unequal footing with supervisors when addressing discrimination and retaliation in the workplace.

A cautionary note, however, is that while the NYC Human Rights Law is expansive, it is not limitless.  Every workplace slight is not necessarily discrimination or retaliation, and you should consult with an attorney before assuming you have a potential claim against an employer and/or supervisor merely because you have been treated poorly or unfairly in the workplace.

The NYC Human Rights Law also does not apply to employers with less than five employees.


New York Times: Gender Bias Case Against Sterling Jewelers Can Proceed

Available here and excerpted below:

"An arbitrator overseeing a gender discrimination case against Sterling Jewelers, parent of 12 chains in the United States including Kay Jewelers, has certified a class of thousands of women to proceed to trial.
Women in the class may pursue a claim challenging Sterling’s pay and promotion practices, the arbitrator, Kathleen A. Roberts, a retired United States magistrate judge at the dispute resolution company JAMS, said in a ruling Monday night." (link)