The Court of Appeals of New York recently held that the Faragher/Ellerth affirmative defense, which is available to employers under federal and New York state law for claims of sexual harassment, is not available under the New York City Human Rights Law ("NYCHRL"). In Zakrzewska v. The New School, et al, the Court held that the plain language of the NYCHRL clearly sets forth a strict liability standard when an employee sues an employer claiming sexual harassment by a supervisor. Accordingly, once a plaintiff succeeds in proving that a supervisor engaged in sexual harassment, the employer will be liable. Therefore, Faragher/Ellerth-type evidence -- evidence showing that (1) no tangible employment action was taken; (2) the employer took reasonable care to prevent and correct harassment; and (3) the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunity -- will have no bearing on the issue of liability. The Court held that such evidence will, however, be relevant to the issue of the plaintiff's mitigation of damages. While this case will not affect cases brought under federal or state law, it gives plaintiffs and their attorneys the option to proceed under the NYCHRL only and also provides additional ammunition for plaintiffs in settlement discussions of claims subject to the New York City law. This case is also yet another reminder for employers to provide anti-harassment training to their managers and supervisors and regularly monitor the workplace environment.
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