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A Northern District of New York federal judge has adopted a more expansive view of the aiding and abetting provisions in New York Human Rights Law than do some state courts, denying summary judgment to upper-level management implicated in a sexual harassment suit. While U.S. District Judge David N. Hurd does not explicitly conclude that the primary actors can aid and abet their own actions — an issue which has divided the Appellate Divisions — he is allowing the claim to proceed largely on that theory. Bennett v. Progressive, 00-CV-0286, is the latest examination of � 296 of the New York Executive Law, which the federal courts have interpreted somewhat more broadly than have some of the state courts. Section 296 makes it an unlawful discriminatory practice “for any person to aid, abet, incite, compel or coerce” any of the acts barred under the Human Rights Law. The question, which awaits final resolution, is whether a person may aid and abet his or her own conduct. Hurd said that where the New York Appellate Divisions have split on the aided and abetted issue, and the state Court of Appeals has yet to resolve the matter, he is bound by the federal precedent articulated in Tomka v. Seiler Corp., 66 F.3d 1295. Tomka, a 1995 opinion by the 2nd U.S. Circuit Court of Appeals, held that only a defendant who “actually participates in the conduct giving rise to a discrimination claim” may be held liable under a � 296 claim. However, the court also said that an individual defendant can be liable even if he or she did not take part in the primary violation, but participated in a subsequent violation such as a cover-up. The Bennett case involves Janet Schrader Bennett, who was employed by The Progressive Corp. Bennett contends she was repeatedly harassed sexually by her supervisor, Larry Mitchell, and ultimately gave in to his coercive requests for sexual favors. After complaining to her employer, Bennett was fired — as was Mitchell — for consuming alcohol on the job. Bennett insists she drank only because she was pressured to do so by Mitchell, and that the firm used the alcohol policy violation as a retaliatory pretext to fire her. Part of her lawsuit is predicated on the aiding and abetting provision in � 296. She claims that Mitchell aided and abetted the alleged sexual harassment — in other words, aided and abetted himself — and that two of his supervisors are also liable for aiding and abetting and for conducting a sham investigation. ‘LOGICAL CONUNDRUM’ Hurd noted that some Southern District federal judges have concluded that an actor cannot aid and abet his own conduct, while others have followed “the logical conundrum created by the holding in Tomka.” Additionally, he said the New York courts are divided on the issue, with the Appellate Division, First Department, following Tomka in Steadman v. Sinclair, 636 NYS 2d 325 (1996), and the Second Department parting with Tomkain Trovato v. Air Express International, 655 NYS 2d 656 (1997). “Because the New York Court of Appeals has yet to resolve the issue, Tomka remains binding precedent, and [the defendants] may be personally liable under � 296(6) as aiders and abettors of Progressive’s alleged unlawful conduct,” Hurd found. Harry Hayes of Albany appeared for the plaintiff. Michael J. Sciotti of Hancock & Estabrook in Syracuse, N.Y., represents Mitchell. Appearing for The Progressive were Louis D. DiLorenzo and Gretchen White of Bond, Schoeneck & King in Syracuse.

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