14 N.Y.3d 469 (2010)
Under the New York City Human Rights Law (NYCHRL), an employer is vicariously liable for discriminatory acts of managerial or supervisory employees, regardless of the employer’s awareness or preventative efforts; the Faragher-Ellerth affirmative defense available under Title VII does not apply.
Summary
Dominika Zakrzewska sued The New School, alleging sexual harassment and retaliation by her supervisor, KwangWen Pan, under the NYCHRL. The Second Circuit certified a question to the New York Court of Appeals regarding the applicability of the Faragher-Ellerth defense to NYCHRL claims. The Court of Appeals held that the plain language of the NYCHRL imposes vicarious liability on employers for discriminatory acts by supervisors, precluding the Faragher-Ellerth defense. The NYCHRL’s emphasis on strict liability for supervisory actions reflects a legislative intent to provide greater protection against discrimination than federal law.
Facts
Dominika Zakrzewska, a student at The New School, worked at the Print Output Center where KwangWen Pan was allegedly her immediate supervisor. Zakrzewska claimed Pan subjected her to sexually harassing emails and conduct from January 2004 to May 2005. After she complained, Pan allegedly retaliated by covertly monitoring her internet usage. Zakrzewska filed suit against Pan and The New School asserting sexual harassment and retaliation claims under the NYCHRL.
Procedural History
The District Court initially considered whether the Faragher-Ellerth defense applied and concluded the School would be entitled to judgment if it did. However, the court then determined that the plain language of the NYCHRL precluded the defense. The District Court denied the School’s motion for summary judgment, and then certified an interlocutory appeal to the Second Circuit. The Second Circuit then certified a question to the New York Court of Appeals regarding the applicability of the Faragher-Ellerth defense under the NYCHRL.
Issue(s)
Whether the affirmative defense to employer liability articulated in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) applies to sexual harassment and retaliation claims under section 8-107 of the New York City Administrative Code?
Holding
No, because the plain language of NYCHRL § 8-107(13)(b) imposes vicarious liability on employers for the discriminatory acts of managerial or supervisory employees, regardless of the employer’s awareness or preventative efforts, precluding the application of the Faragher-Ellerth defense.
Court’s Reasoning
The Court reasoned that while state and local civil rights statutes are generally interpreted consistently with federal precedent when substantively and textually similar, the NYCHRL contains specific provisions regarding employer liability that differ from federal law. Section 8-107(13)(b) creates a scheme where employers are liable for discriminatory acts by employees exercising managerial or supervisory responsibility, or when the employer knew or should have known of the conduct and failed to take corrective action. The court highlighted that even where an employer has anti-discrimination policies, they serve only to mitigate civil penalties and punitive damages, not liability itself, unlike the Faragher-Ellerth defense. The legislative history of the NYCHRL supports this interpretation, indicating an intent to impose strict liability for the acts of managers and supervisors. The court stated 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.” The court distinguished Forrest v. Jewish Guild for the Blind, noting that the issue of strict liability under § 8-107(13) was not raised or considered in that case. The Court emphasized that policy considerations are best left to the legislature, and it is bound to apply the plain language of the statute. The court rejected the argument that strict liability would impede deterrence, deferring to the legislative judgment on this matter.