New York Court Recognizes Defenses to Workplace Harassment Claims under State and City Human Rights Laws
In 1998, the United States Supreme Court held in the cases of Burlington Indus., Inc. v. Ellerth and Faragher v. City of Boca Raton that an employer is not liable for workplace harassment claims arising under federal law if it can show “that the employer (1) had exercised reasonable care to avoid harassment and to eliminate it when it might occur; and (2) that the complaining employee had failed to act with like reasonable care to take advantage of the employer’s safeguards and otherwise to prevent harm that could have been avoided.” This defense is critical to employers in defending workplace harassment claims.
Recently, in Barnum v. New York City Transit Authority, the Appellate Division, Second Judicial Department, held that the Faragher-Ellerth defense can be used by employers to defend claims under the New York State Human Rights Law, and under the New York City Human Rights Law for claims that arose prior to the enactment of the Local Civil Restoration Act of 2005, an amendment to the NYCHRL which requires courts to interpret the NYCHRL more favorable to employees than would be justified by case law interpreting federal and state civil rights laws. Moreover, other recent court decisions have held that the Fragher-Ellerth defense is unavailable under the NYCHRL for harassment claims arising after October 2005, when the Restoration Act was passed.
The applicability of the Faragher-Ellerth defense to employment harassment claims continues to be a developing legal issue. In Zakrzweska v. The New School, the federal district court explained that “[t]he apparent tendency to press claims under the state and city antidiscrimination laws, either in lieu of or in addition to claims under federal statutes, creates a genuine need for resolution of the vicarious liability standards applicable to employers under those statutes.” Additionally, the district court asked the United States Court of Appeals for the Second Circuit to state conclusively whether the defense is available under the NYCHRL.
