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.

Intro to the NYCHRL: Your Right to a Non-Discriminatory Lunch

New York City is undeniably more liberal than most other places in America.  So it should be no surprise that it has one of the most protective anti-discrimination statutes in the country. 

In contrast, federal discrimination claims often face difficult hurdles.  There are countless situations where behavior that is objectively discriminatory, would not make it far as a discrimination claim under only federal law.

The result is that clearly discriminatory conduct goes unpunished, not because it is not discrimination, but because discrimination law has a standard, either judge made, or based on the text of the statute, that is very conservative - demanding at times incredibly exacting evidentiary support. 

But what about situations that are clearly discriminatory, but where there is a “smart discriminator”?  A discriminator who fails to leave a helpful document trail clearly showing the reason they did what they did was based on discrimination or retaliation.

Or what about instances that are discriminatory, but where the courts are be hesitant to find discriminatory because the conduct is viewed by some merely as passing slights?

Enter stage left – the New York City Human Rights Law, which applies less demanding standards for finding conduct to be discriminatory compared to its federal and state counterparts.

In fact, there are some pretty striking examples where the NYC law supported a discrimination lawsuit that might not have made it far in court under only federal law.

Here is one:

At an administrative hearing, a restaurant, a place of public accommodation under Administrative Code section 8-102(9), was found to have engaged in discrimination against an African American customer by asking her to pay for her food before receiving it, while three non-African American customers were not required to pay for their food until receiving their food orders. Respondents failed to demonstrate a legitimate, non-discriminatory motive for treating the African American customer differently.

Annotated NYC Administrative Code 8-107

Importantly, just this one instance was enough to find the restaurant liable for discrimination.

The restaurant was ultimately fined $5,000.

Amazingly, the restaurant did this to a “tester” from the New York City Commission on Human Rights – i.e. an employee of the Commission. 

 You can read the final decision and previous history here.

Come back for additional case studies demonstrating the distinction between federal and NYCHRL discrimination standards.