New York City Imposes Strict Liability for Discrimination by Managers and Supervisors

On May 6, 2010, the New York Court of Appeals held in Zakrzewska v. The New School,1 that the affirmative defense to employer liability articulated by the U.S. Supreme Court in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth does not apply to sexual harassment and retaliation claims against employers under the New York City Human Rights Law (NYCHRL). Although New York courts have traditionally applied the same principles to employment discrimination claims under federal, state and local law, the court found the text of the NYCHRL compels a departure in terms of this defense.2

The court recognized that, unlike its federal and state counterparts, the NYCHRL contains provisions that specify clearly when liability may be imposed on an employer. According to the NYCHRL, an employer is liable for an employee's discriminatory conduct where: (1) the employee exercised managerial or supervisory responsibility; (2) the employer knew of the employee's discriminatory conduct and acquiesced in such conduct or failed to take immediate and appropriate corrective action; or (3) the employer should have known of the employee's discriminatory conduct and failed to exercise reasonable diligence to prevent such discriminatory conduct.3 Finding those provisions inconsistent with the Faragher/Ellerth defense,4 the court interpreted the NYCHRL as written and held that the defense is not available in harassment and retaliation claims against employers under the NYCHRL.

This decision marks the NYCHRL's latest deviation from federal and New York State anti-discrimination laws. In 2009, the First Department of New York's Appellate Division held in Williams v. New York City Housing Authority5 that harassment need not be "severe or pervasive" to be actionable under the NYCHRL, a significant departure from the standards under federal and New York State anti-discrimination laws.

Although the Faragher/Ellerth defense is not available under the NYCHRL in cases of supervisory discrimination, harassment or retaliation, an employer may in such cases mitigate its exposure to civil penalties and punitive damages by pleading and proving facts similar to those required to establish the Faragher/Ellerth defense.6 Those facts include, but are not limited to, the following:

1. The employer "established and complied with policies, programs and procedures for the prevention and detection of unlawful discriminatory practices by employees, agents and persons...