Faragher-Ellerth Defense No Longer Available to Employers Under New York City Human Rights Law

posted by Albert Rizzo  |  Nov 23, 2010 11:25 AM [EST]  |  applies to New York

In May 2010, the New York Court of Appeals in Zakrzewska v. The New School held that an employer’s defense to a claim of harassment when the employer is able to demonstrate that it took reasonable steps to prevent or correct the harassment and that the employee unreasonable failed to take advantage of the corrective opportunity to avoid the harm, commonly known as the Faragher-Ellerth Defense, is not applicable under the New York City Human Rights Law. NYC Admin Code 8-107.

New York’s highest court determined that the language of the statute imposes liability on an employer where (1) the offending employee exercised managerial or supervisory responsibility, (2) the employer knew of the offending employee’s discriminatory conduct and acquiesced in it or failed to immediate corrective action, and (3) the employer should have known of the conduct, and failed to exercise reasonable diligence to prevent it. The statutory language being clear, the court said, the fact that an employee who has not suffered any adverse employment action did not avail herself of an opportunity to avoid harm after an employer took steps to prevent the harassment, is irrelevant.

This is not the first time the courts have interpreted the New York City anti-discrimination laws differently from the New York State and federal laws.

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