Wednesday, August 4, 2010

NYC employers beware: New York City human rights law bars Faragher-Ellerth affirmative defense to harassment claims
Lowenstein Sandler PC
William I. Greenbaum and Danielle C. Carmona USA July 22 2010

In a decision that dramatically expands the scope of liability for New York City employers, the New York Court of Appeals held in Zakrzewska v The New School, 2010 NY Slip Op 03796 (NY May 6, 2010) that the Faragher-Ellerth affirmative defense1 — which allows an employer to defeat harassment claims if it demonstrates that (a) there was no adverse employment action, (b) it took reasonable care to prevent or promptly correct harassing conduct, and (c) the employee unreasonably failed to take advantage of the employer’s preventive or corrective procedures — is not available under the New York City Human Rights Law (“NYCHRL”).
Factual and Procedural Background
In Zakrzewska, Plaintiff Dominika Zakrzewska was employed part-time by a print output center within the New School’s Academic Computing Center. Over the course of a year beginning in 2004, Zakrzewska’s “immediate supervisor,” Kwang-Wen Pan, allegedly subjected her to sexually harassing emails and conduct. In alleged retaliation for Zakrzewska’s complaints to School officials in May 2005, Pan covertly monitored Zakrzewska’s Internet usage from August 2005 through 2006.
Zakrzewska later filed suit against the School and Pan in the United States District Court for the Southern District of New York, alleging sexual harassment and retaliation under the NYCHRL. The School moved for summary judgment dismissing Zakrzewska’s complaint on the grounds that it was not vicariously liable for Pan’s alleged conduct under a Faragher-Ellerth defense.

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