DRAFT FOR ATTORNEY REVIEW — NOT FINAL

§ 290

Citation
§ 290
Parent Document
Francis v. Kings Park Manor, Inc., 992 F.3d 67 (2021)
Effective Date
2021-03-25
Original Source
https://www.courtlistener.com/opinion/4867798/francis-v-kings-park-manor-inc/ ↗

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33   Davis, 526 U.S. at 646 (quoting Acton, 515 U.S. at 655). As the panel
dissenter explained, “an employee is considered an agent of the employer while the
tenant is not considered an agent of the landlord” and “employers . . . exert far more
control over not only their employees, but also the entire workplace environment
than do landlords over their tenants and the residences those tenants quite literally
call their own.” Francis I, 944 F.3d at 391-92 (Livingston, J., dissenting). The Supreme
Court has observed that the workplace is generally characterized by “[p]roximity
and regular contact” among employers, supervisors, and employees. Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 760 (1998). Most employers have ready access to,
effective control over, and the ability to move within, the physical workplace and
can freely dismiss at-will employees. Employers typically can, and generally do,
“monitor employees” as well as use a wide range of tools to adequately
“investigate . . . misconduct” (including mandatory interviews and other means of
gathering information) and “remediate . . . misconduct” (including suspension,
compensation reduction, demotion, transfer, training, and dismissal), all of which
gives employers extensive and reliable control over employee behavior. Francis I,
944 F.3d at 392-93 (Livingston, J., dissenting). Accordingly, this Court has
recognized employer liability for the actions of non-employees under Title VII only
where “(1) the employer exercises a high degree of control over the behavior of the non-
employee, and (2) the employer's own negligence permits or facilitates that non-
employee's discrimination.” Menaker v. Hofstra Univ., 935 F.3d 20, 39 (2d Cir. 2019)
(emphasis added) (internal quotation marks omitted).