Vicarious Liability Defense No Longer Valid Under the New York City Human Rights Law
The New York Court of Appeals has eliminated an affirmative defense for New York City employers who are sued for claims of sexual harassment by a supervisor under the New York City Human Rights Law (“NYCHRL”). The Court held that the vicarious liability defense under Faragher-Ellsworth is inconsistent with the plain language of the NYCHRL, which applies strict liability against employers for the actions of managers and supervisors. The court ruled, therefore, that the employer was vicariously liable even though they “exercised reasonable care” to correct the alleged behavior and prevent it from happening in the future, and even though the employee did not take advantage of the corrective opportunities offered by the employer.
Because employees will receive more favorable treatment under the city statute than at either the state or federal level, New York City employers should prepare for an increase in lawsuits filed under the NYCHRL. The court did confirm that an employer’s anti-discrimination and harassment policies and procedures may mitigate penalties and/or damages. It is more important than ever that all employers proactively develop and maintain procedures, educate their employees with specialized and continued training, and promptly investigate any and all complaints that come to light.
For more information, see Zakrzewska v. The New School, 2010 N.Y. LEXIS 632 (N.Y. May 6, 2010).