New York Law Review

Tag: sexual harassment

  • Zakrzewska v. The New School, 14 N.Y.3d 469 (2010): Employer Liability for Supervisory Harassment Under the NYCHRL

    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.

  • Thoreson v. Penthouse International, Ltd., 80 N.Y.2d 490 (1992): Recovery of Punitive Damages Under New York Human Rights Law

    Thoreson v. Penthouse International, Ltd., 80 N.Y.2d 490 (1992)

    In a court action brought under Executive Law § 297(9) for violations of the New York Human Rights Law, punitive damages are not recoverable.

    Summary

    Thoreson sued Penthouse International, Ltd. and Robert Guccione, alleging sexual harassment and seeking both compensatory and punitive damages. The trial court awarded compensatory and substantial punitive damages. The Appellate Division affirmed the compensatory award but vacated the punitive damages. The New York Court of Appeals affirmed, holding that the plain language and legislative history of Executive Law § 297(9) indicate that the legislature did not intend to allow punitive damages in court actions for Human Rights Law violations, especially given that such damages are not permitted in administrative proceedings before the State Division of Human Rights, except in specific housing discrimination cases.

    Facts

    Thoreson, a former employee of Penthouse International, Ltd., alleged that she was subjected to sexual harassment. She claimed Guccione coerced her into having sexual relations with his business associates as a condition of her employment, constituting quid pro quo harassment.

    Procedural History

    Thoreson filed suit in Supreme Court, which found in her favor and awarded both compensatory and punitive damages. The Appellate Division affirmed the compensatory damages but vacated the punitive damages award. Both parties appealed to the New York Court of Appeals, which granted leave.

    Issue(s)

    Whether punitive damages are permissible in a statutory action under Executive Law § 297(9) for violations of the New York Human Rights Law.

    Holding

    No, because the language and legislative history of Executive Law § 297(9) do not indicate a legislative intent to allow punitive damages in court actions for Human Rights Law violations, and such damages are generally not permitted in administrative proceedings before the State Division of Human Rights, except in housing discrimination cases.

    Court’s Reasoning

    The court focused on the statutory language of Executive Law § 297(9), which creates a cause of action for “damages and such other remedies as may be appropriate.” The court reasoned that “damages” in this context refers to remedies intended to alleviate the harm suffered by the aggrieved party, not to punish the wrongdoer. Punitive damages, by contrast, serve as a warning to others and are intended as punishment. The court emphasized that in administrative proceedings before the State Division of Human Rights, the focus is on rectifying the wrong to the injured party, not on punishing the transgressor.

    The court highlighted the legislative history of the Human Rights Law, noting that the Legislature rejected a proposal to empower the State Division to award exemplary damages. Furthermore, in 1991, the Legislature added a specific provision for punitive damages in cases of housing discrimination only, suggesting that such damages were not intended to be recoverable in other types of discrimination cases. The court applied the principle of expressio unius est exclusio alterius. The court quoted from the State Division’s memorandum: “At present the Human Rights Law * * * [p]ermits only compensatory damages to aggrieved persons.”

    The Court reasoned that allowing punitive damages in court actions would be incompatible with the remedial nature of the Human Rights Law and would encourage aggrieved persons to bypass the administrative process in favor of court proceedings where they could seek punitive damages. The Court stated, “It would seem highly improbable that the Legislature in adopting Executive Law § 297 (9) could have intended to permit the recovery of punitive damages in a court proceeding when that relief is expressly excluded in a proceeding before the State Division.”