The Faragher-Ellerth Defense: Inapplicable to Harassment and Retaliation Claims under the New York City Human Rights Law
On May 6, 2010, the New York Court of Appeals held that the affirmative defense created by the Supreme Court in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth (the “Faragher-Ellerth defense”) does not apply to sexual harassment and retaliation claims under the New York City Human Rights Law (NYCHRL). In Zakrzewska v. The New School, 2010 NY Slip Op. 3796, the Court concluded that the NYCHRL subjects employers to strict liability for harassment committed by supervisory employees, and that Faragher-Ellerth-type evidence can only be used to mitigate potential civil penalties and punitive damages.
Dominika Zakrzewska attended, and worked part-time at, The New School (the “School”). She alleged that Kwang-Wen Pan, her supervisor, sexually harassed her. In response to her complaint in May 2005, the School warned Pan that he was to have no further personal communications with Zakrzewska, stripped him of all supervisory and managerial responsibilities over her, and required him to attend sexual harassment training. Thereafter, Pan ceased communicating with Zakrzewska, but according to her, he covertly monitored her computer use at work in retaliation for her complaint.
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