Southern District Rules Faragher-Ellerth Defense Not Available in Harassment Case Brought under New York City Human Rights Law, but Certifies Issue to Second Circuit

Zakrzewska v. The New School, 2009 WL 252094 (S.D.N.Y., January 26, 2009) – Judge Lewis Kaplan has certified to the Second Circuit Court of Appeals the important question of whether the Faragher-Ellerth defense applies to sexual harassment and retaliation claims under the New York City Human Rights Law, N.Y.C. AD. C. 8-107, subd. 13(b). 

The Faragher-Ellerth (Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)) decisions held that an employer is not liable under Title VII of the Civil Rights Act for sexual harassment committed by a supervisory employee if it proves that: (1) no tangible employment action was taken as a part of the alleged harassment; (2) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (3) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. Judge Kaplan observed that the plain language of the New York City Human Rights law creates vicarious liability for the acts of managers and supervisors even when they are unaware of the alleged harassment, which is inconsistent with Faragher-Ellerth. Judge Kaplan therefore denied summary judgment to the employer but certified the question for review by the Second Circuit Court of Appeals, finding there are substantial grounds for difference of opinion on the issue.  

Note: This article was published in the March 2009 issue of the New Jersey eAuthority.