This article discusses the Court of Appeals' recent decision in Doe v. Bloomberg, L.P., —N.E.3d—, 2021 WL 496608 (Feb. 11, 2021), in which the court grappled with whether an individual business owner qualifies as an "employer" under the New York City Human Rights Law (NYCHRL). The court's decision created a sweeping new per se rule holding that individual owners do not qualify as "employers"—and, therefore, are exempt from the NYCHRL's vicarious liability provisions—despite the expansive scope of the statute.

Plaintiff's Sexual Harassment Claims, and the Underlying Procedural History. The plaintiff in Doe was an employee at Bloomberg L.P. who alleged that her boss engaged in illegal discrimination, sexual harassment, and sexual abuse. She brought claims under the NYCHRL against the individual who allegedly harassed her, the company, and also Michael Bloomberg individually, based on his status as an owner and officer of the company. With respect to Mr. Bloomberg, the plaintiff alleged that he fostered an environment that accepted and encouraged "sexist and sexually-charged behavior." Id. at *1. She did not claim that Mr. Bloomberg personally participated in any of the specific offending conduct. Id. Nevertheless, the plaintiff sought to hold Mr. Bloomberg individually liable based upon N.Y. Admin. Code §8-107(13)(b)(1), which is "a vicarious liability provision which imposes strict liability on an employer … ." Id. at *2.

Mr. Bloomberg moved to dismiss the claims against him, and the Supreme Court initially granted the motion to dismiss, but later granted reargument and denied the motion. Id. at *1. Mr. Bloomberg appealed, and a divided panel of the Appellate Division, First Department, reversed the trial court's decision, and dismissed the claims against him on the basis that the plaintiff had not alleged that Mr. Bloomberg "encouraged, condoned or approved of the specific discriminatory conduct." Id. Because two Justices of the Appellate Division dissented, the plaintiff was permitted to appeal to the Court of Appeals as of right pursuant to CPLR §5601(a).