• No Winning for Losing in New York City
  • July 8, 2009
  • Law Firms: Day Pitney LLP - Morristown Office; Day Pitney LLP - Hartford Office
  • What else are they going to throw at New York City employers? How about eliminating the Faragher/Ellerth affirmative defense and the "severe or pervasive" test for harassment claims. That’s just what two separate courts recently did.

    First, in Zakrzewska v. The New School, the United States District Court for the Southern District of New York held that the Faragher/Ellerth affirmative defense used by employers to negate liability for sexual harassment claims under Title VII based on their exercise of reasonable care did not apply to sexual harassment claims brought under the New York City Human Rights Law (NYCHRL). The defense was believed to be inconsistent with NYCHRL § 8-107, which imposes vicarious liability on employers "for acts of managerial and supervisory employees even where the employer has exercised reasonable care to prevent and correct any discriminatory actions." So, now, even reasonable employers who have anti-harassment policies and practices, and take measures to prevent and eliminated harassment in the workplace are on the hook. Fortunately, the Second Circuit court of appeals has certified the appeal and, hopefully, will overturn this decision.

    Second, in Williams v. New York City Housing Authority, a New York state appellate court held that to establish a hostile work environment under the NYCHRL, employees must demonstrate that they were treated "less well" than other employees, departing from the long-standing requirement that employees demonstrate the conduct was "severe or pervasive." The court determined that the "severe or pervasive" standard, which applies to federal and state harassment claims, is inconsistent with the "uniquely broad and remedial" purposes of the NYCHRL. The court further determined that the severe or pervasive standard is problematic because it assumes that dissimilar treatment is equal unless it is "severe or pervasive." The court even stated that the "severe or pervasive" test "sanctioned a significant spectrum of conduct demeaning to women." As a result, once an employee is treated "less well" than others, he or she has a viable claim for hostile work environment in NYC.

    Employers in NYC please take heed. These cases provide a significant departure from existing law and impose a substantially higher standard on you. With the increased liability for employers and decreased burden on employees, you can expect a spike in harassment litigation and charges, which undoubtedly will be difficult to defend.