New York City employers may not use the Faragher/Ellerth defense to harassment claims lodged under New York City’s Human Rights Law. That’s the verdict of New York’s Court of Appeals. (Zakrzewska v. New School. 2010 NY LEXIS 632 [May 6, 2010]).
Instead, New York City employers will be strictly liable for harassment by supervisory or managerial employees unless they can prove that the alleged harassment was no more than “petty slights and trivial inconveniences. ” ) (Williams v. NY City Housing Authority, 872 N.Y.S.2d 27 )
What should New York City employers be considering? Here are some thoughts: zero tolerance policies; regular supervisory training; no discrimination/no harassment policies which oblige employees to report any activity considered harassing or which is more than a “petty slight” or a “trivial inconvenience”; arbitration for workplace claims. (Sulds, “New Rules for Harassment Claims in New York City”, New York Law Journal, April 9, 2009)