Employment-New York Court Of Appeals Rules That The Faragher-Ellerth Defense Does Not Apply Under New York City Law

In Zakrzewska v. The New School, Decision No. 62 (May 6, 2010),the plaintiff, Dominika Zakrzewska, had brought a lawsuit in federal court against defendants, Kwang-Wen Pan and The New School, for sexual harassment and retaliation under the New York City Human Rights Law (the “NYCHRL”). As part of the proceeding, the Second Circuit Court of Appeals asked the New York Court of Appeals whether the affirmative defense to employer liability, articulated in Faragher v City of Boca Raton, 524 US 775 (1998) and Burlington Industries, Inc. v Ellerth, 524 US 742 (1998)(the “Faragher/Ellerth Defense”), applies to sexual harassment and retaliation claims under the NYCHRL.

In this case, the plaintiff had enrolled as a freshman at the New School, and had worked part-time in the schools’ computer center. She alleges that defendant Pan was her immediate supervisor and subjected her to sexually harassing emails and conduct. The plaintiff complained to New School officials, and she further alleges that Pan covertly monitored her internet usage at work in retaliation for her accusation. The question arose as to the New School’s liability for Pan’s conduct, and whether the Faragher-Ellerth Defense could shield the New School from this liability.

The Faragher-Ellerth Defense provides that 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. But does this defense apply under the NYCHRL? The question found its way to the New York Court of Appeals.

In answering this question, the New York Court of Appeals notes that Section 8-107 (1) (a) of the NYCHRL prohibits discrimination on the basis of gender, and section 8-107 (13) (b) states that an employer shall be liable for an employee’s violation of the prohibition when: (1) the employee exercised managerial or supervisory responsibility, (2) the employer knew of the employee’s discriminatory conduct, and acquiesced in the conduct or failed to take immediate and appropriate corrective action or (3) the employer should have known of the employee’s conduct and failed to exercise reasonable diligence to prevent it.

The New York Court of Appeals stated that the plain language of the NYCHRL-which holds the employer liable when the employee in question is a manager or supervisor or the employer knew, or should have known about the employee’s discriminatory conduct- is inconsistent with and precludes the Faragher-Ellerth Defense, which is based on anti-discrimination policies and procedures. As such, the Court concluded that the Faragher-Ellerth Defense does not apply under the NYCHRL.