Federal Appeals Court Certifies Sexual Harassment Question to New York’s Highest Court
On July 27, 2009, the U.S. Court of Appeals for the Second Circuit asked the New York Court of Appeals to answer the following question: Does the affirmative defense to employer liability articulated in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), apply to sexual harassment and retaliation claims under section 8-107 of the New York City Administrative Code?
Under Faragher/Ellerth, employers are afforded an affirmative defense under federal law to vicarious liability for discriminatory harassment by a supervisor that does not result in a tangible employment action if the employer can show it exercised reasonable care to prevent and correct alleged discriminatory conduct and the employee unreasonably failed to take advantage of the protective measures afforded by the employer.
The language of the New York Human Rights Laws is in direct conflict with the federal Faragher/Ellerth affirmative defense. The Second Circuit correctly called on New York’s highest court to resolve this issue because of “the absence of authoritative state court decisions, the importance of the issue to the state, and the capacity of certification to resolve this litigation.”
