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No Escape for New York City Employers When Supervisors Harass: Prevention is Key

New York’s highest court, the Court of Appeals, recently held that the New York City Human Rights Law (“NYCHRL”) imposes strict liability on employers for supervisors who sexually harass employees.  As a result, City employers are much more vulnerable to harassment claims and should take appropriate precautions such as training supervisors.

In Zakrzewska v. New School, the plaintiff alleged her supervisor sexually harassed her.  The employer responded by asserting a “Faragher/Ellerth” defense.  That defense (based on two U.S. Supreme Court decisions) provides an employer can escape liability for a supervisor’s sexual harassment if it can prove (1) a tangible employment act (e.g. discharge or demotion) was not involved, (2) the employer took reasonable care to prevent and promptly correct the harassment, and (3) the plaintiff employee unreasonably failed to take advantage of the preventative or corrective opportunities offered to avoid harm.  Although the employer in this case may have been able to show factually that the Faragher/Ellerth requirements were satisfied, the Court said the NYCHRL does not permit such a defense.  Thus, if the plaintiff can prove the supervisor harassed her, the employer will be liable.  The only consolation to the employer is that Faragher/Ellerth factors may limit civil penalties and punitive damages under the NYCHRL.

In light of this decision, City employers should be more proactive about preventing sexual harassment by supervisors.  One crucial component is proper harassment-free training for all supervisors.  Also, make sure your “open-door” policy is clear to employees and that it encourages them to come forward at the first sign of harassment.  Since sex harassment often starts small and gradually escalates, the sooner employees speak up, the more likely it will be stopped before it becomes serious (thus limiting potential damages).  Lastly, consider having a “zero tolerance” policy where employees will be discharged at only the first instance of harassment. 

Although it is always the case that an ounce of prevention is better than a pound of cure, the Zakrzewska decision makes it clear that under the NYCHRL, prevention is the only option.

Brody and Associates regularly provides training and counseling on maintaining a harassment free environment as well as counsel on civil rights issues and employment litigation in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.