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Here at Miletti Law®, we are the authoritative force in Employment and Labor Law. Therefore, we are committed to updating our series on employment & labor law with fresh, verifiable, and credible content. In that spirit, this blog is Part X of our series on New York State and City laws that apply to workplace harassment, discrimination, & retaliation. In Part IX of this series, we hammered on “Harassment Claims,” as recognized by the NYSHRL. At this point, we now switch gears and move forward to Part X of the series, in which we will look at Vicarious Liability for Harassment,” as recognized under both the NYCHRL & NYSHRL.

Vicarious Liability for Harassment

For starters, while the ”liability” results from the recognition that a special legal relationship existed between two parties (say party A & party B), vicarious liability is a legal principle referring to a liability imposed on party A for Party B’s wrongful acts and vice versa.


The NYCHRL recognizes vicarious liability of harassment pursuant to NYC Administrative Code § 8-107, subd. 13(b) of the Statute. Thus, an employer may be held liable for an unlawful discriminatory practice, which includes, but is not limited to sexual harassment, if the following employee aspects are established:

  • The employee was a supervisor or manager.
  • The employer was supposed to be in the know of the employee’s conduct but did not prevent it for failure to exercise reasonable diligence.
  • The employer knew of the employee’s conduct and failed to take appropriate and immediate action or acquiesced to such conduct.

However, based on their ownership interest of titles, the employees, limited partners, agents, and shareholders of a business entity cannot be held vicariously liable as employers under the NYCHRL. Nonetheless, as provided for under NYC Administrative Code § 8-107, subd. 13(c), if the conduct was committed by an independent contractor, then the employer may be held liable for an unlawful practice under the NYCHRL if:

  • The employer has actual knowledge of such conduct.
  • The employer acquiesced in such conduct.
  • Such conduct took place in furtherance of the employer’s business.
  • Such conduct was committed in the course of employment.

It is crucial to note that the Faragher-Ellerthdefense is precluded from sexual harassment claims brought under the NYCHRL by NYC Administrative Code § 8-107, subd. 13(b)of Statute. Thus, if an individual’s conduct amounts to sexual harassment, then the employer is strictly liable for such an act if it is committed by the employer’s supervisory employee. However, if the employer establishes that the alleged harassment was nothing more than petty slights or trivial inconveniences, then the plaintiff cannot prevail and the employer is not strictly liable for such acts.


Unlike under the NYCHRL, the vicarious liability principle is not applicable in holding an employer liable for the conduct of such an employer’s employee in a sexual harassment lawsuit made under the NYSHRL. Instead, an employee is required to prove that the employer acquiesced in or encouraged and, subsequently, condoned or ignored the discriminatory conduct. If the employer engaged in any of the following, then it can be shown that the employer condoned sexual harassment:

  • Conducted insufficient investigation or no investigation at all.
  • Took insufficient corrective action or no corrective action at all.
  • Acquired knowledge after the fact.

Notably, any other claims brought for harassment based on protected traits other than sex apply a similar standard. However, following the due process in past but similar cases, if the discriminatory conduct was committed by a chief executive, then the employer may be held strictly liable under the NYSHRL.

In Part XI of this series, we will hammer on “Whistleblowing & Retaliation Claims” and “Liability Standards” in view of several New York laws that apply to workplace harassment, discrimination, & retaliation.

Until then, stay tuned for more legal guidance, training, and counsel. In the interim, reach us with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.