Faragher-Ellerth Defense Not Available Under New York City Human Rights Law

Zakrzewska v. New School, 2010 WL 1791091 (Court of Appeals, May 6, 2010) – The New York Court of Appeals recently held that the longstanding Faragher-Ellerth defense is not available to defendants under the New York City Human Rights Law (NYCHRL). First enunciated in 1988 as a defense to Title VII claims, the Faragher-Ellerth defense provides a shield to employers for harassment committed by a supervisory employee when the employer can prove that: (1) a tangible adverse employment action was not involved; (2) the employer exercised reasonable care to prevent and promptly correct the harassing behavior; and (3) the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer, or otherwise failed to avoid harm. The state’s high court explained that, unlike Title VII and the New York State Human Rights Law, the NYCHRL imposes strict liability for an employer sued for harassment by a supervisor, and thus the defense is not applicable. An employer may, however, still rely upon Faragher-Ellerth-type evidence to mitigate civil penalties and punitive damages.