Vicarious employer liability in sexual harassment and retaliation claims under NYCHRL §8-107 are not shielded by Faragher-Ellerth
New York City Human Rights Law (“NYCHRL”) and Federal Law do not treat sexual harassment and retaliation claims the same. While courts generally interpret state and local civil rights statutes consistently with federal precedent where the statutes are substantially and textually similar (McGrath v. Toys “R” Us, Inc., 3 N.Y.3d 421, 429, 821 N.E.2d 519, 788 N.Y.S.2d 281 (2004)), with respect to NYCHRL §8-107(13) that generalization is limited by the plain language of statute and legislators’ intent.
In Federal Title VII litigation employers are entitled to utilize the Faragher-Ellerth affirmative defense enumerated by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998). This affirmative defense shields the employer from Title VII sexual harassment claims if the employer can show that: (1) no tangible employment action was taken against the complaining employee (e.g., discharge, demotion or undesirable reassignment) as part of the alleged harassment; (2) the employer exercised reasonable care to abate and promptly correct any sexually harassing behavior; and (3) the complaining employee did not fully utilize preventative or corrective procedures provided by the employer. Zakrzewska v. The New School, 2010 NY Slip Op 3796, 11, 14 N.Y.3d 469, 902 N.Y.S.2d 838 (N.Y. 2010). In Zakrzewska, the Court of Appeals ruled, on a question certified by the Second Circuit, that the Faragher-Ellerth defense to sexual harassment and retaliation claims is not available to employers under §8-107 of the New York City Administrative Code.
Section 8-107(1)(a) of the NYCHRL prohibits discrimination on the basis of, inter alia, age, race, national origin, gender, disability, marital status, sexual orientation and citizenship. An employer can be found vicariously liable for its employee’s discriminatory conduct under §8-107(13)(b) where “(1) [t]he employee or agent exercised managerial or supervisory responsibility; or (2) [t]he employer knew of the employee’s or agent’s discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action; an employer shall be deemed to have knowledge of an employee’s or agent’s discriminatory conduct where that conduct was known by another employee or agent who exercised managerial or supervisory responsibility; or (3) the employer should have known of the employee’s or agent’s discriminatory conduct and failed to exercise reasonable diligence to prevent such discriminatory conduct.” Two later provisions of the statute, §8-107(13)(d) and (e), provide that if the employer can prove that it (a) had an established policy for the prevention and detection of discrimination by employees, agents or independent contractors and (b) had a record of few or no prior incidents of discriminatory conduct by the accused employee, agent or independent contractor, then this evidence will mitigate the amount of civil and punitive penalties damages that may be imposed and the evidence shall be considered in determining the employer’s liability under §8-107(13)(b)(3). The Court of Appeals found that based on the rules of statutory construction (the “plain meaning”) that the application of the Faragher-Ellerth affirmative defense would be inconsistent -- because only for §8-107(13)(b)(3), dealing with non-supervisory employees, did the legislators provide that an employer’s established anti-discrimination policies and procedures could shield liability. For sections 8-107(b)(1) and (2), the employer’s policies are considered only for the limited purpose of minimizing the amount of damages that may be imposed, i.e., the anti-discrimination policies and procedures will not insulate the employer from liability. The Court also examined the statute’s history and found that the legislators enacted §8-107(13) with the intent of imposing “[s]trict liability in the employment context for acts of managers and supervisors” who participate in discriminatory behavior or knowingly allow discriminatory conduct by employees. Thus, in defending actions under NYCHRL, counselors should be aware that what may be available in a substantially similar federal action as an affirmative defense, will not be available under this state statute.
Mark J. Lemire, Esq.