applicable to summary judgment and sexual harassment claims, the court will not
summarily dismiss this cause of action against Perfect World.
"An employer is considered to have notice of sexual harassment if the employer
— or any of its agents or supervisory employees — knew or should have
known of the conduct.... An official's knowledge will be imputed to an employer when:
(A) the official is at a sufficiently high level in the company's management hierarchy to
qualify as a proxy for the company; or (B) the official was charged with a duty to act on
the knowledge and stop the harassment; or (C) the official is charged with a duty to
inform the company of the harassment" (Distasio v Perkin Elmer Corp.,
supra, 157 F3d at 63-64, citing Torres v Pisano, supra, 116 F3d
at 636-637). Perfect World appears to meet this test since its owner/agent, and the only
person with the authority to correct discriminatory practices, was David, the alleged
harasser. Thus, the Faragher-Ellerth defense available to Bulletproof is
unavailing to Perfect World. This does not mean that plaintiff has shown entitlement to
summary judgment against Perfect World or David. There are too many unanswered
factual questions, primarily about the employment relationship, which should be resolved
only by a jury.
(C). Jeffrey and David
Individual liability is one of the few points on which the state Human Rights Law
differs from Title VII. "It is well settled that individual defendants are not subject to
liability under Title VII" (Bancroft v Farino, n.o.r., 2012 WL 4616964, *2
[SDNY 2012], citing Tomka v Seiler Corp., supra, 66 F3d at 1313;
Strauss v New York State Dept. of Education, supra, 26 AD3d at 72).
New York's Court of Appeals has held that individuals may be liable under the State