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New York High Court Rules That Employers are Strictly Liable for Acts of Managers and Supervisors Under New York Citys Human Rights Law

May 12, 2010

By Zachary D. Fasman, Allan S. Bloom, and Alexander W. Wood

Ever since the United States Supreme Court decided Faragher v. Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), employers have had recourse to an affirmative defense to liability (the Faragher/Ellerth defense) in cases where a supervisor is accused of sexual harassment but where no tangible employment action is taken against the plaintiff (e.g., demotion or discharge). In such cases, assuming that the plaintiff has otherwise proven sexual harassment (or a prima facie case on a motion for summary judgment), the employers defense requires proof by a preponderance of the evidence that (1) it exercised reasonable care to prevent and correct any harassment, and (2) the plaintiff unreasonably failed to make use of any preventive and corrective mechanisms provided by the employer or otherwise avoid the harm. This defense has been a useful tool for employers to minimize or eliminate their liability when a supervisor harasses another employee; it often results in summary judgment for an employer that can show the existence of an anti-discrimination policy and complaint procedures that were not utilized by the plaintiff. The New York Court of Appeals, however, in a closely watched decision, recently held that the Faragher/Ellerth defense does not apply to discrimination lawsuits brought under New York Citys Human Rights Law (the NYCHRL).