Employers Held Not to Have Faragher-Ellerth Affirmative Defense Under New York City Human Rights Law

 In Zakrzewska v. The New School, 2010 N.Y. LEXIS 632 (N.Y. May 6, 2010), the New York Court of Appeals, answering a question certified to it by the Second Circuit, held that the plain language of the New York City Human Rights Law (NYCHRL) precludes the Faragher-Ellerth defense, finding that the language of Section 8-107(13)(b) is inconsistent with that defense.  Specifically, the court found that that provision creates vicarious liability for the acts of managerial and supervisory employees even where the employer has exercised reasonable care to prevent and correct any discriminatory actions and even where the aggrieved employee unreasonably has failed to take advantage of employer-offered corrective opportunities. 

In light of this holding, practitioners should look to their state and local anti-discrimination statutes to see whether or not the language is similar to that of the NYCHRL.  The specific statutory language at issue in Zakrzewska reads as follows:

“[a]n employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of subdivision one or two of this section only where: (1) the employee or agent exercised managerial or supervisory responsibility; or (2) the 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.”

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