part of her job, and she was "very offended" by the "large pictures of various naked
women" that David had in his apartment (complaint, ¶¶ 29-30). In addition,
the complaint specifies two off-color comments in a work context (one in front of
another employee) (id., ¶¶ 26-27) and, on plaintiff's penultimate
workday, one major incident of sexual harassment involving inappropriate intimate
questions, improper comments and suggestive gestures (see id., ¶¶
31-37).
Based on these allegations, plaintiff avers that David sexually harassed her and
discriminated against her and contends that the remaining defendants are vicariously
liable for David's conduct.
Defendants argue that the corporate defendants cannot be held liable for
discrimination because they did not condone or even know about David's conduct.
[*7]I. State law
The first cause of action in the complaint alleges that defendants violated Executive
Law § 296(1) by discriminating against her because of her gender and sexually
harassing her (id., ¶ 46).
The derivative liability of a corporate employer in a claim of sex discrimination
based on sexual harassment under Executive Law § 296(1) is a multi-tiered concept.
"A complainant seeking relief for sexual harassment may proceed under two
theories: (1) quid pro quo; and (2) hostile work environment.... Quid pro
quo harassment occurs when unwelcome sexual conduct — whether sexual
advances, requests for sexual favors, or other verbal or physical conduct of a sexual
nature — is used, either explicitly or implicitly, as the basis for employment
decisions affecting compensation, terms, conditions, or privileges of the complainant's
employment" (Father Belle Community Center v New York State Division of Human