The New School: New York Court of Appeals eliminates a key employer defense in harassment claims for New York City employers

May 21, 2010

Employment Law Alert

The New York Court of Appeals recently held that the affirmative defense available to employers under federal and state law for claims of sexual harassment by a supervisor does not apply under the New York City Human Rights Law (“NYCHRL”). This case represents a significant blow to employers defending sexual harassment claims. As a result, New York City employers are likely to see litigation costs increase as more claims are brought under the NYCHRL, and more plaintiffs survive attempts to defeat their claims at the summary judgment phase. 

In addition to the costs of discovery, damages recoverable under the NYCHRL exceed those available under state and federal law. The court’s holding could extend the strict liability analysis to additional types of discrimination under the NYCHRL.  Employers should prepare to enforce their non-discrimination and anti-harassment policies aggressively, and adopt a zero tolerance approach to any violation.

Zakrzewska v. The New School

In Zakrzewska v. The New School, 2010 N.Y. LEXIS 632 (N.Y. May 6, 2010), the plaintiff was a freshman at The New School who worked part-time in its Print Output Center. She alleged that she had been subjected to sexually harassing e-mails and conduct by her “immediate supervisor” and that she was subjected to retaliation after complaining about the conduct, in violation of the NYCHRL. 

The New School had a policy prohibiting sexual harassment. The policy was available on the school’s website, as well as in its student handbook and employee handbook. During her employment, the plaintiff met with The New School’s associate general counsel and another employee, and informed them that she had been harassed by a supervisory employee. The New School conducted an investigation and took various remedial steps to correct the behavior of the supervisor and prevent any further allegations of harassment. The plaintiff, however, expressed dissatisfaction with the outcome of the investigation and sued The New School in federal district court. The New School moved for summary judgment on the plaintiff’s hostile work environment claim on the basis that it was not vicariously liable for the alleged conduct based on the Faragher-Ellerth affirmative defense applied to claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) .[1

The district court examined the applicability of the Faragher-Ellerth defense to claims under the NYCHRL to determine whether The New School would be entitled to summary judgment. The court held that the plain language of the NYCHRL is “inconsistent” with the Faragher-Ellerth defense and therefore that the defense does not apply to NYCHRL claims. The court concluded that the NYCHRL “creates vicarious liability for the acts of managerial and supervisory employees even where the employer has exercised reasonable care to prevent and correct any discriminatory actions and even where the aggrieved employee unreasonably has failed to take advantage of employer-offered corrective opportunities.”[2]  However, because Faragher-Ellerth’s application to NYCHRL claims was an open, but “controlling question of law,” the district court certified the issue to the Second Circuit, which in turn certified the issue to the New York Court of Appeals.

The New York Court of Appeals agreed with the district court that the plain language of the NYCHRL precluded application of the affirmative defense, as did its legislative history, which specifically provided for “[s]trict liability in the employment context for acts of managers and supervisors.”[3] The court noted that while historically, the court has interpreted state and local civil rights statutes “consistently with federal precedent,” it has done so only where the statutes “are substantively and textually similar to their federal counterparts.”[4]

While holding that the Faragher-Ellerth defense will not shield an employer against liability for a supervisor’s actions, the court nevertheless confirmed that an employer’s anti-discrimination policies and procedures may be considered in mitigation of the amount of civil penalties or punitive damages recoverable. For employers, the fact an employee may recover punitive damages under the NYCHRL is particularly noteworthy, as punitive damages are not available under New York State law or Title VII. Unfortunately, even if damages can be mitigated, compensatory damages, costs, and reasonable attorneys’ fees are still recoverable. 

Williams v. New York City Housing Authority

Prior to Zakrzewska, last year, the Appellate Division, First Department rejected the application of the Supreme Court’s Title VII “severe or pervasive” test for determining whether a plaintiff has alleged actionable sexual harassment under the NYCHRL in favor of a less stringent test more favorable to employees. Williams v. New York City Housing Authority, 872 N.Y.S.2d 27 (N.Y. App. Div. 1st Dept. 2009).

In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the Supreme Court held that for a plaintiff to prevail on a claim for workplace harassment based on a hostile work environment under Title VII, he or she must show that the harassment is sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment.

In Williams, however, the court held that the “severe or pervasive” threshold for determining harassment claims under the NYCHRL was too stringent, and, therefore, inconsistent with the “uniquely broad and remedial purposes” of the NYCHRL. In particular, the court noted that the sliding scale created by the “severe or pervasive” test reduces the incentive for employers to create workplaces that have zero tolerance for conduct demeaning to a worker because of protected class status. 

Thus, rather than a “severe or pervasive” test, the court adopted a standard that asks simply whether there was unequal treatment, i.e., whether the plaintiff was treated “less well” than other employees based on his or her membership in a protected class.[5]  The court further held that questions of “severity” and “pervasiveness” were applicable solely to consideration of the scope of damages, rather than the question of underlying liability.[6]

The court did acknowledge that the broader purposes of the NYCHRL do not connote an intention that the law operate as a “general civility code.”[7]  However, the way to avoid such a result was not by establishing “an overly restrictive severe or pervasive bar,” but rather by “recognizing an affirmative defense whereby defendants can still avoid liability if they prove that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider ‘petty slights and trivial inconveniences.’”[8]  Based on this analysis, the court held that the plaintiff’s claims were in fact nothing more than petty slights or trivial inconveniences and, therefore, granted summary judgment.

What the Zakrzewska and Williams decisions mean for New York City employers

The broad interpretation of the NYCHRL by the New York Court of Appeals and the First Department grants employees suing under that statute far more favorable treatment for harassment claims than available under both state and federal law. New York City employers, who once could rely on the defense that an employee never notified the employer of harassment despite well-documented anti-harassment policies and procedures, can no longer use this as an affirmative defense to avoid liability under the NYCHRL. Similarly, employees who once faced a higher threshold to state a claim for harassment now need to meet a far less onerous standard.

Zakrzewska and Williams set the stage for plaintiffs to bring more claims against employers under the NYCHRL, as opposed to (or in addition to) state and federal law. Both courts and practitioners need to analyze NYCHRL claims separately from claims under state and federal law. Based on the broader interpretation of the NYCHRL, plaintiffs will now have a greater likelihood of surviving motions for summary judgment.   

The decisions further highlight the importance of putting zero tolerance harassment policies in place.  Although the existence of these policies is no guarantee liability will be avoided, an employer can limit the amount of damages it must pay in the event it is found liable for harassment. Periodic training on anti-harassment policies is also vital to ensure that all employees are aware of the types of behavior that constitute harassment, and to prevent such behavior before it happens. As New York City employers are now even more susceptible to liability for the harassing behavior of an employee, they should immediately evaluate or implement harassment policies, and take the appropriate measures to prevent discriminatory conduct in the workplace.  


  1. In Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the Supreme Court established that an employer cannot be held liable under Title VII for sexual harassment committed by a supervisory employee if: (1) no tangible employment action was taken as a part of the alleged harassment; (2) the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (3) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, or to avoid harm otherwise. [Back to reference]
  2. Zakrzewska, 2010 NY LEXIS 632, at **11.
    [Back to reference]
  3. Id. at **11 (citing 1991 New York City Legislative Annual, S.A. 1, 7 (1991)). [Back to reference]
  4. Id. at **8 (quoting McGrath v. Toys “R” Us, Inc., 3 NY3d 421, 429 N.Y. 2004)). [Back to reference]
  5. Williams, 872 N.Y.S.2d at ***39. [Back to reference]
  6. Id. at ***38. [Back to reference]
  7. Id. at ***40. [Back to reference]
  8. Id. at ***41. [Back to reference]

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