§1.8 IX. Employer Defenses Based On EXIsting Policies

• Jurisdiction: New York

IX. Employer Defenses Based on Existing Policies

Specific defenses exist for employers in particular circumstances – although the defenses are narrowing under New York law. In cases alleging a hostile work environment, employers have a potential defense available pursuant to the line of cases stemming from Faragher v. City of Boca Raton¹⁹⁴ and Burlington Indus., Inc. v. Ellerth,¹⁹⁵ i.e., the Faragher-Ellerth defense. Courts have explained the defense as follows:

The Faragher/Ellerth defense, named for two cases the Supreme Court decided the same day, . . . provides that "an employer is strictly liable for supervisory harassment that 'culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.'" . . . See also Ellerth, 524 U.S. at 761 (identifying as tangible employment actions "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits"). The Faragher/Ellerth defense also shields an employer from liability where the employer maintains an anti-harassment policy with which an employee has failed to demonstrate compliance.

The Faragher/Ellerth defense consists of two elements providing that even if a supervisor's behavior resulted in a tangible employment action against the plaintiff, the employer will not be liable if (1) "the employer exercised reasonable care to prevent and correct promptly any [discriminatory] harassing behavior," and (2) "the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.". . . With regard to the first element, the maintenance of a written anti-harassment policy providing a procedure for an employee who is the victim of harassment to report the harassment to the Defendant for investigation satisfies the first element. . . . "With regard to the second element, 'proof that an employee has unreasonably failed to use the employer's complaint procedure normally suffices to satisfy the employer's burden.'" ¹⁹⁶

New York City, however, eliminated the Faragher-Ellerth defense under the New York City Human Rights Law: "The NYCHRL imposes strict liability on employers for discriminatory acts of managerial employees."¹⁹⁷

While the defense did exist in New York State at one time, not so any longer following the Amendments Act signed by the Governor on August 12, 2019.¹⁹⁸ Thus, even in situations where the plaintiff employee does not make use of an employer's policies and procedures, and does not complain to the employer or put the employer on notice pursuant to a stated policy, the defendant employer has no...