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Month 00, 2009

New York Court of Appeals Holds That The Faragher-Ellerth Defense Does Not Apply To Claims Under The New York City Human Rights Law

On May 6, 2010, the New York Court of Appeals held in Zakrzewska v. The New School, 2010 NY Slip Op 03796, that an affirmative defense to employer liability available under federal law does not apply to sexual harassment and retaliation claims under the New York City Human Rights Law.  The affirmative defense, known as the Faragher-Ellerth defense, stems from two U.S. Supreme Court cases, Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

The Faragher-Ellerth defense provides that an employer is not liable under Title VII for sexual harassment committed by a supervisory employee if the employer shows that (1) no tangible employment action such as discharge, demotion, or undesirable reassignment was taken as part of the alleged harassment; (2) the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (3) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. 

In Zakrzewska, a student at The New School who worked part-time in the School’s Print Output Center alleged that her immediate supervisor subjected her to sexually harassing emails and conduct and, in retaliation for her complaints to School officials, covertly monitored her internet usage at work.  The School moved for summary judgment to dismiss Zakrzewska’s complaint, asserting the Faragher-Ellerth defense to argue that it was not vicariously liable for the supervisor’s alleged sexual harassment.  The United States Court of Appeals for the Second Circuit certified the question to the New York Court of Appeals to rule on the applicability of the Faragher-Ellerth defense to sexual harassment and retaliation claims under the New York City Human Rights Law (“NYCHRL”).

The New York Court of Appeals concluded that the plain language of the NYCHRL precludes the Faragher-Ellerth defense.  According to the Court, the NYCHRL imposes liability on the employer where (1) the offending employee exercised managerial or supervisory responsibility; (2) the employer knew of the offending employee’s unlawful discriminatory conduct and acquiesced in it or failed to take immediate and appropriate corrective action; and (3) the employer should have known of the offending employee’s unlawful discriminatory conduct yet failed to exercise reasonable diligence to prevent it.  In addition, an employer’s anti-discrimination policies and procedures – which are at the core of the Faragher-Ellerth defense – may only be considered in mitigation of damages, and not to shield against liability.

The Court rejected the School’s contention that to interpret the NYCHRL as imposing strict liability in the employment context for acts of managers and supervisors would be inconsistent with state laws.  The Court explained that both the NYCHRL and New York State Human Rights Law prohibit discrimination; the NYCHRL merely creates a greater penalty for unlawful discrimination.

In effect, the NYCHRL creates vicarious liability for the acts of managerial and supervisory employees even where the employer has exercised reasonable care to prevent and correct any discriminatory actions and even where the aggrieved employee unreasonably has failed to take advantage of employer-offered corrective opportunities.

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If you should have any questions regarding the Faragher-Ellerth defense and its applicability under the New York City or New York State Human Rights Laws or any other related issues, please contact us.

Putney, Twombly, Hall & Hirson LLP