Labor & Employment Law

Faragher-Ellerth Defense Not Available to NYC Employers

In Zakrzewska v. The New School, the NY State Court of Appeals issued a blow to employers in New York City who have relied upon the Faragher-Ellerth Defense in sexual harassment claims. 

Generally under the Faragher-Ellerth Defense employers an employer may avoid liability for sexual harassment claims under Title VII of the Civil Rights Act of 1964 for acts committed by a supervisory employee if it can demonstrate the following:  1) that there was no tangible employment action taken against the individual, 2) that the employer acted promptly and responsibly to correct any harassing behavior, and that the employee failed to avoid harm otherwise.

Employers have long relied on this defense to minimize their exposure. However, in Zakrzewska, interpreting the New York City Human Rights Law, the Court of Appeals asserted that the clear language of the statue precludes the availability of the Faragher-Ellerth defense.  Specifically, an employer "...shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of [the statute] where: (1) the employee or agent exercised managerial or supervisory responsibility...

I say don't throw out your training and policies yet.  Avoidance of lawsuits is the best defense!

Follow this link to:  Zakrzewska v. The New School

P.S. Did you ever notice that in theses landmark cases, the names of the parties are often so difficult that you can't pronounce or spell them?

Full post as published by Strategic HR Lawyer on May 17, 2010 (boomark / email).