Supervisor or Coworker Harassment: When Is the Employer Legally Responsible in New York?

Proving that harassment happened is one question; whether the employer is legally responsible for it is another, and the answer turns on who the harasser was. Under federal law the rule for supervisors differs from the rule for coworkers, under the New York City Human Rights Law (NYCHRL) the employer answers for managers and supervisors by statute, and under the New York State Human Rights Law (NYSHRL) the Court of Appeals has required that the employer encouraged, condoned or approved the conduct.⁠^[1][3][4][6]

This guide covers the employer's responsibility for harassment by its own supervisors and coworkers. Separate guides cover harassment by customers, clients and vendors and whether you can sue an individual boss personally.

Comparison: employer liability under each layer

Situation	Federal law (Title VII)	New York State (NYSHRL)	New York City (NYCHRL)
Supervisor harasses and takes a tangible employment action (firing, demotion)	Employer is strictly liable; no affirmative defense.⁠[10]	Court of Appeals precedent: employer is liable only if it became a party to the act by encouraging, condoning or approving it.⁠[6][7]	Employer is liable where the employee or agent exercised managerial or supervisory responsibility.⁠[4]
Supervisor harasses, no tangible employment action	Employer is vicariously liable but may prove the two-part Faragher-Ellerth affirmative defense.⁠[1]	Same precedent; since October 11, 2019, the employee's failure to complain is not determinative of the employer's liability.⁠[6][8][9]	Employer is liable; the Faragher-Ellerth defense is precluded.⁠[4][5]
Coworker harasses	Employer is liable only if it was negligent in controlling working conditions.⁠[3]	Same precedent: encouraging, condoning or approving.⁠[6]	Employer is liable if it knew and acquiesced or failed to take immediate and appropriate corrective action, or should have known and failed to exercise reasonable diligence to prevent the conduct.⁠[11][12]
Who counts as a supervisor	Someone empowered by the employer to take tangible employment actions against the victim.⁠[2]	The precedent was applied to a supervisor's conduct; it turns on whether the employer encouraged, condoned or approved the act.⁠[6]	An employee or agent who "exercised managerial or supervisory responsibility."⁠[4]
Effect of an anti-harassment policy	Bears on the first element of the affirmative defense; does not necessarily insulate the employer.⁠[13][14]	Under the State model sexual harassment policy, a supervisor or manager who witnesses harassment is required to report it.⁠[15]	Mitigates civil penalties and punitive damages; can shield against liability only in the "should have known" coworker situation.⁠[16][17]

Federal law: Faragher, Ellerth and Vance

Harassment by a supervisor

Under Title VII, an employer is subject to vicarious liability (legal responsibility for another person's conduct) for an actionable hostile environment created by a supervisor with immediate or successively higher authority over the employee.⁠^[1] The Supreme Court announced that rule in two decisions issued in 1998, Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth.⁠^[1]

What happens next depends on whether the supervisor took a tangible employment action. A tangible employment action is a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.⁠^[18] If the supervisor's harassment culminates in one, no affirmative defense is available and the employer is strictly liable under federal law.⁠^[10]

If there was no tangible employment action, the employer may raise what is known as the Faragher-Ellerth defense. It has two necessary elements, and the employer has to prove both by a preponderance of the evidence:⁠^[1]

1. that the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and⁠^[1]
2. that the employee unreasonably failed to take advantage of preventive or corrective opportunities the employer provided, or otherwise to avoid harm.⁠^[1]

A written policy is relevant to the first element but is not required in every case as a matter of law, and an employee's unreasonable failure to use the employer's complaint procedure will normally be enough to satisfy the employer's burden on the second element.⁠^[13] At the same time, the Supreme Court has said that the mere existence of a grievance procedure and a policy against discrimination, coupled with the employee's failure to use the procedure, does not necessarily insulate an employer under federal law.⁠^[14]

Who is a "supervisor" under federal law

In Vance v. Ball State University (2013), the Supreme Court held that an employee is a "supervisor" for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim.⁠^[2] The Court rejected a broader definition and said the ability to direct another employee's tasks is not sufficient; harassment by a person who lacks the power to take tangible employment actions is judged under the negligence rule for coworkers.⁠^[19][3]

Harassment by a coworker

If the harassing employee is the victim's coworker, the employer is liable under Title VII only if it was negligent in controlling working conditions.⁠^[3] The Supreme Court listed evidence that would be relevant: that the employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed.⁠^[3]

The Second Circuit, the federal appeals court that covers New York, puts the coworker rule this way: the employee has to show that the employer failed to provide a reasonable avenue for complaint, or that it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.⁠^[20]

One note on agency materials: the EEOC voted on January 22, 2026, to rescind its 2024 enforcement guidance on harassment, and the 1999 guidance on supervisor liability that it replaced is marked rescinded, so neither should be cited as current.⁠^[21][22] The EEOC's Chair stated that the federal laws and the Supreme Court precedent interpreting them remain in place.⁠^[23]

New York State law: the "encouraged, condoned or approved" precedent and the 2019 amendment

In Forrest v. Jewish Guild for the Blind (2004), the Court of Appeals, New York's highest court, said that an employer cannot be held liable under State law for an employee's discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it.⁠^[6] In that case the Court applied the rule to a supervisor's racial slurs made without the knowledge or acquiescence of the employer.⁠^[6] In 2021 the Court restated that, under its precedent, the NYSHRL did not impose vicarious liability on employers and that only an employer who "became a party to" the discriminatory act could be held liable.⁠^[7]

In 2019 the Legislature added a harassment provision to the statute, Executive Law § 296(1)(h), effective October 11, 2019, for claims accruing on or after that date.⁠^[9][24] The same 2019 legislation also amended the statute's rule of construction, effective August 12, 2019.⁠^[25] Two parts of that legislation bear on employer responsibility:

• The statute now says that the fact that the individual did not make a complaint about the harassment to the employer shall not be determinative of whether the employer shall be liable.⁠^[8]
• The statute now directs that the NYSHRL be construed liberally to accomplish its remedial purposes, regardless of whether comparably worded federal civil rights laws have been so construed.⁠^[26]

The amended provision does not say that an internal complaint is irrelevant; it says only that the absence of one does not decide the question.⁠^[8] The Court of Appeals' 2021 restatement came in a City-law case and did not address the 2019 amendments. This guide does not say how far those amendments change the older "encouraged, condoned or approved" rule; that is a question for a lawyer.⁠^[7][6][8]

Common mistake. It is a mistake to assume that New York State law makes an employer automatically responsible for a supervisor's harassment. The provision that makes an employer liable where the employee exercised managerial or supervisory responsibility is in the New York City statute; the Court of Appeals' State-law precedent asks whether the employer encouraged, condoned or approved the act.⁠^[4][6]

State law also shapes what supervisors are expected to do. Under the State's model sexual harassment prevention policy, a supervisor or manager who is a bystander to harassment is required to report it, and supervisors and managers can be disciplined for failing to report suspected sexual harassment or for allowing it to continue after they know about it.⁠^[15][27] The guide to the State model policy covers those duties.

New York City law: section 8-107(13)

The NYCHRL addresses employer responsibility in its own subdivision, N.Y.C. Admin. Code § 8-107(13). For discrimination and harassment claims, an employer is liable for the conduct of an employee or agent in three situations.⁠^[4]

1. Managers and supervisors. The employee or agent exercised managerial or supervisory responsibility.⁠^[4]
2. The employer knew. The employer knew of the conduct and acquiesced in it or failed to take immediate and appropriate corrective action. The employer is deemed to know if another employee or agent with managerial or supervisory responsibility knew.⁠^[11]
3. The employer should have known. The employer should have known of the conduct and failed to exercise reasonable diligence to prevent it.⁠^[12]

In Zakrzewska v. New School (2010), the Court of Appeals held that the plain language of the NYCHRL precludes the Faragher-Ellerth defense.⁠^[5] The Court explained what an employer's policies and procedures can do under the City law: where mitigation applies, compensatory damages, costs and reasonable attorney's fees are still recoverable, and those policies shield against liability itself only where an employer should have known of a non-supervisory employee's unlawful acts.⁠^[16]

The City statute lists what an employer may show in mitigation, including a meaningful and responsive procedure for investigating complaints, a firm policy that is effectively communicated, a program to educate employees, and a record of no, or relatively few, prior incidents.⁠^[28] Proof of those factors is considered in mitigation of civil penalties and punitive damages, and is among the factors considered in deciding "should have known" liability.⁠^[17]

For violations other than discrimination and harassment under subdivisions 1 and 2, such as retaliation, the employer is liable for the conduct of an employee or agent without the manager or knowledge conditions.⁠^[29]

What this means in practice

The three layers use different tests, so the same facts can produce different answers on employer responsibility. Which layers apply depends on where the work is done and how large the employer is: a person who does not live in New York City has to show that the alleged conduct had an impact within the city, Title VII covers only employers with 15 or more employees, the City law generally does not cover an employer with fewer than four persons except for gender-based harassment claims, and the State law covers all employers within the state.⁠^{[30][31][32][33][34]}

For employees, the practical points are these. Note the harasser's actual authority: who hires, fires, sets pay and schedules, and signs reviews. Note who in management saw the conduct or was told about it, and when. Keep a copy of the employer's policy and of any complaint you made. You do not have to reach a legal conclusion yourself; these are the facts that each of the tests above looks at. The guides on how to report harassment at work and whether you have to report to HR first go further.

For employers and managers, see the guide for managers and small employers and the overview of employer defenses.