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.
The San Diego City Council recently approved an ordinance raising the city’s minimum wage to $11.50 per hour by 2017. This wage increase will take effect incrementally over a three-year period, putting San Diego ahead of California’s minimum wage beginning in January 2015 at the rate of $9.50 per hour. In addition to its wage increase, the ordinance includes numerous sick pay provisions that will affect both employers and employees.
As the East Coast braces for yet another hurricane, we should contemplate the impact that natural disasters can have on employees and employers, both personally and professionally. While individuals prepare their homes and employers prepare their businesses for the physical damage, employers will benefit from also assessing the practical and legal implications surrounding the unpredictable events Mother Nature throws our way—and planning accordingly.
On May 24, with Justice Antonin Scalia writing a unanimous opinion, the U.S. Supreme Court ruled in a case brought by a group of African-American firefighter applicants who alleged that the city of Chicago’s applicant selection process had a disparate impact on African-Americans in violation of Title VII of the Civil Rights Act of 1964.