Employers should take note that the New York State Court of Appeals has now held that the Faragher-Ellerth affirmative defense to claims of unlawful harassment is not available to employers for claims brought under the New York City Human Rights Law. Zakrzewska v. The New School (May 6, 2010). The Faragher-Ellerth affirmative defense under federal law provides that an employer may avoid liability for unlawful harassment committed by a supervisor where (i) there was no tangible employment action (e.g., discharge, demotion or undesirable reassignment), (ii) the employer exercised reasonable care to prevent and correct promptly any harassing behavior (including implementing an effective policy for reporting and resolving harassment complaints) and (iii) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. The New York State Court of Appeals held that, based on the specific wording of the New York City Human Rights Law, the affirmative defense is inapplicable to claims under that law. The Court also relied in part on the legislative history of the New York City Human Rights Law, which stated that employers would be strictly liable for unlawful harassment committed by their managers and supervisors. The Court stated that "an employer's anti-discrimination policies and procedures...shield against liability...only where an employer should have known of a nonsupervisory employee's unlawful discriminatory acts." Employers' anti-discrimination policies and procedures may still be considered under the New York City law, however, for purposes of mitigation of damages. This decision from the state's highest court is now final and binding on employers in New York.

Suggested Action

  • Given that employers in New York City are now likely to be strictly liable for unlawful harassment committed by their supervisors, it is even more important for employers to make effective efforts to prevent such harassment in the first place. In addition to having a policy addressing discrimination and harassment, employers should train their supervisors regarding appropriate workplace behavior.