In a recent and much anticipated decision, the New York Court of Appeals, the State’s highest court ruled in Zakrzewska v. New School that the New York City Human Rights Law (“NYCHRL”) imposes strict liability on an employer where the offending employee exercised managerial or supervisory responsibility over the employee-plaintiff.
Prior to this decision, New York City employers were advised by counsel that they could potentially escape liability in harassment cases by asserting the Faragher/Ellerth defense which in relevant parts require the employer to establish that it:
1) took reasonable steps to prevent or promptly correct the alleged harassment; and
(2) the employee unreasonably failed to take advantage of any preventative opportunities provided by the employer.
That defense is no longer available to employers defending claims of harassment by a supervisor brought pursuant to the NYCHRL. Instead, the court in Zakrzewska instructed that an employer’s anti-discrimination policies and procedures may be considered only for purposes of mitigating the amount of civil penalties or punitive damages awarded to the plaintiff.
New York City employers must increase their efforts to monitor and prevent workplace harassment. Specifically, with respect to supervisors, New York City employers must conduct comprehensive, mandatory harassment trainings with particular emphasis on how to identify and address unwelcomed conduct in the workplace, and contemporaneously document all affirmative steps taken to investigate and resolve those activities. Anything less will be to an employer’s peril. To the extent your company does not conduct frequent and thorough harassment trainings programs, you should contact your labor and employment counsel immediately to create one for your business.