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NEW YORK CITY HUMAN RIGHTS LAW HOLDS EMPLOYERS STRICTLY LIABLE FOR A SUPERVISOR'S CONDUCT IN SEXUAL HARASSMENT CASES

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In a fairly recent case handed down by the New York Court of Appeals, employers are held strictly liable for a supervisor's conduct in sexual harassment cases. Ordinarily, state courts like to try and reconcile both federal laws like Title VII with state laws.

In Zakrewska v. The New School, the plaintiff claimed that she had been sexually harassed by her immediate supervisor through e-mails and certain conduct. She sued the school using the NYCHRL (New York City Human Rights Law) in federal district court. The New School tried to use the Ellerth defense (allows for a defendant in a Title VII case to claim immunity to vicarious liability of employees if (1) there was no tangible employment action take because of the harassment, (2) the employer exercised reasonable care to prevent and in response to the harassing conduct, and (3) the employee unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer). The district court denied the motion and The New School appealed which was certified by the 2nd Circuit.

The 2nd Circuit agreed with the district court that the defense was not available under the New York City Human Rights Law. The plain language of Section 8-107 precludes the use of the Ellerth defense by stating:[a]n employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of subdivision one or two of this section only where:
"(1) the employee or agent exercised managerial or supervisory responsibility; or
"(2) the employer knew of the employee's or agent's discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action; an employer shall be deemed to have knowledge of an employee's or agent's discriminatory conduct where that conduct was known by another employee or agent who exercised managerial or supervisory responsibility; or
"(3) the employer should have known of the employee's or agent's discriminatory conduct and failed to exercise reasonable diligence to prevent such discriminatory conduct"

Based on this plain language, the court concluded that the Ellerth is unavailable for a defendant under the NYCHRL and therefore will be strictly liable for the conduct of it's employees. Furthermore, the court noted that the statute states that an employer's anti-discrimination policy can other go towards the mitigation of civil penalties or punitive damages.

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