Employment-A Good Question: The Second Circuit Asks the New York Court of Appeals Whether The Faragher-Ellerth Defense Is Available Under The New York City Human Rights Law

Zakrzewska v. The New School, No. 09-0611-cv, is one of an increasing number of employment discrimination cases that has been brought in federal district court under one or both New York anti-discrimination laws–the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (the “NYCHRL”), rather than under Title VII of the Civil Rights Act of 1964 (“Title VII”) . In the case, plaintiff Dominika Zakrzewska sued her co-worker, defendant Kwang-Wen Pan, and her former employer, defendant The New School (“TNS”), alleging sexual harassment and retaliation in violation of the nondiscrimination requirements of the NYCHRL. On a motion for summary judgment by TNS, the question of whether the “Faragher-Ellerth defense”, which is an affirmative defense to a claim of sexual harassment by the employer in cases arising under Title VII, applies to sexual harassment and retaliation claims brought under the NYCHRL. The District Court certified this question to the Second Circuit. In turn, the Second Circuit certified the question to the New York Court of Appeals, due to the absence of authoritative state court decisions, particularly the absence of any decision by the New York Court of Appeals, the importance of the matter to the state, and the need to answer the question to resolve the instant case.

The Faragher-Ellerth defense originated in two 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). Under the Faragher-Ellerth defense, an employer is not liable under Title VII for sexual harassment committed by a supervisory employee if it sustains the burden of proving 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 correct promptly 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 avoid harm otherwise.

In Zakrzewska, the District Court concluded that, if the Faragher-Ellerth defense applies to the plaintiff’s claims under the NYCHRL, then the defendant, TNS, is entitled to judgment as a matter of law. As to whether this defense applies, the District Court examined the provision of the NYCHRL (found in section 8-107, subdivision 13(b) of the New York City Administrative Code) which sets forth three circumstances under which an employer can be held liable for the acts of an employee that violate the nondiscrimination rules of the NYCHRL:

(1) the employee exercised managerial or supervisory responsibility;

(2) the employer knew of the employee’s discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action; or
(3) the employer should have known of the employee’s discriminatory conduct and failed to exercise reasonable diligence to prevent such conduct.
The District Court found that there was at least some evidence that defendant-Pan was a manager employed by TNS (circumstance (1) above), so that TNS has liability for Pan’s harassing and retaliatory conduct under the NYCHRL unless the Faragher-Ellerth defense applies.

Interesting Point: The NYCHRL takes a different and less employer-protective approach to employer vicarious liability than the Faragher-Ellerth defense. The NYCHRL creates vicarious liability for an employer for the acts of its managerial and supervisory employees even where the employer has exercised reasonable care to prevent and correct any discriminatory acts, and even where the aggrieved employee unreasonably has failed to take advantage of employer-offered corrective opportunities. Further, the Local Civil Rights Restoration Act of 2005 (the “Restoration Act”) requires that the NYCHRL be construed liberally, without regard to how Federal or New York State civil and human rights law has been interpreted. This different and less employer-protective approach of the NYCHRL, coupled with the Restoration Act, may tempt the New York Court of Appeals to decide that the Faragher-Ellerth defense does not apply to a case brought under the NYCHRL. In a footnote in Zakrzewska, the Second Circuit itself says that in Williams v. New York City Hous. Auth., 872 N.Y.S.2d 27 (1st Dept. 2009) the York Supreme Court, with the Restoration Act in mind, suggested that the Faragher-Ellerth defense is not available in lawsuits brought under the NYCHRL because “the text and legislative history represent a desire that the NYCHRL meld the broadest vision of social justice with the strongest law enforcement deterrent.”