by James A. Woehlke, Esq., CPA, CAE

On May 6, 2010, New York State’s highest court, the Court of Appeals, ruled that a key employer defense in federal and state sexual harassment cases is not available for claims brought under the New York City Human Rights Law. The federal defense, dating back to two 1998 U.S. Supreme Court cases, was available to employers who had established that (a) there had been no tangible employment action such as termination or demotion, (b) the employer exercised reasonable care to prevent and promptly correct sexually harassing behavior, and (c) the employee failed to take advantage of the protective policies the employer had made available.

In brief, the reason the federal defense is not available is that the underlying federal laws and cases to which the federal defense applies require that an employer’s action be “severe or pervasive” to result in liability. The NYC law establishes a lower threshold. Under the NYC law, an employer is liable for the conduct of an employee when the “employee or agent exercised managerial or supervisory responsibility.”

Although maintaining anti-harassment policies will not provide a defense under the NYC law, law firm Proskauer Rose advises, “Employers should continue providing avenues for employees to complain about discrimination, as this can help stop problems from escalating. Given this recent decision, prevention is more important than ever. Providing supervisors and all employees with sexual harassment training can help prevent hostile work environments from arising and keep employers free from liability.” In addition, the defense remains useful in actions brought under New York State and federal law.

The law firm of VedderPrice agrees and advises: “Proper training and other strategies to prevent workplace harassment, discrimination and retaliation are now even more essential for two reasons. First, the strict liability standard imposed by Zakrzewska means that employers can no longer successfully plead ignorance as a defense to an NYCHRL claim. An employer’s best strategy for avoiding liability is to take affirmative steps to ensure that harassment never occurs. Second, showing that the employer had effective policies and mechanisms for reporting and remediation of discrimination, harassment and retaliation complaints may be used under the NYCHRL to mitigate civil penalties and punitive damages.”

For more information, see http://www.proskauer.com/publications/client-alert/new-yorks-high-court-rejects-faragher-ellerth-affirmative-defense and
http://www.vedderprice.com/index.cfm/fuseaction/pub.detail/object_id/a6f19ca7-3806-495f-81c0-97bfbb62ae49/SupervisorMisconductundertheNewYorkCityHumanRightsLaw.cfm.

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