It has long been settled that an employer may, in many instances, avoid liability under the State and Federal statutes governing employment discrimination and harassment if it has an effectively publicized and well-enforced anti-discrimination/anti-harassment policy. This is known as the “Faragher-Ellerth” affirmative defense, named after the United States Supreme Court decisions which articulated the theory – Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, both decided in 1998.
It has also been assumed by many New York employment law attorneys that such policies would also shield employers under the New York City law which prohibits certain types of discrimination/harassment in the workplace (NYC Administrative Code §8-107). This is because state courts have long held that the New York City statute should be analyzed in accordance with the analogous state law.
However, in May, 2010, in a matter entitled Zakrzewska v. The New School, the New York Court of Appeals, which is the highest state court in New York, held that the “Faragher-Ellerth” defense does not apply to claims brought pursuant to the New York City Administrative Code. The court did, however, hold that an employer’s antidiscrimination policies and procedures may be considered in mitigating the amount of civil penalties or punitive damages recoverable by a claimant in a civil action.
Obviously, this ruling is a blow to employers who draft and promulgate anti-discrimination/anti-harassment policies and strictly enforce them. However, employers should continue to do so, for a number of reasons. First, it is simply a good employment practice to have such policy(ies) in place, so that employees can file complaints of discrimination and harassment, and employers can resolve such matters early-on, in a decisive and cost-effective manner. Second, such policies can still act as an affirmative defense, or “shield” against such claims brought under the New York State and Federal laws. Third, even if such policies cannot be used as an affirmative defense under the New York City Administrative Code, they can be used to mitigate, or lessen, an employer’s damages in any civil suit brought pursuant to that statute.