Workplace harassment is an all too common phrase in the New York City business community, and our local newspapers provide constant reminders that a harassment lawsuit can have a devastating financial impact on an employer's business. In an effort to avoid such liability, many New York City employers have implemented anti-harassment policies that contain reporting procedures for employees to utilize if they believe they have been subject to unwelcome conduct. When forced to defend workplace harassment claims, traditionally, New York City employers have relied on such policies to argue that the aggrieved employee failed to use the reporting procedures to lodge a harassment complaint and, therefore, the company should not be held responsible.

This defense, commonly known as the "Faragher/Ellerth defense," allows an employer to escape liability for harassment that did not result in a tangible employment action (such as discharge or demotion), if the employer can show that: (1) it took reasonable steps to prevent or promptly correct the alleged harassment; and (2) the employee unreasonably failed to take advantage of any preventative opportunities provided by the employer. Thus, for example, if an employer maintains an anti-harassment policy that includes procedures to report workplace harassment, and an employee fails to report that a supervisor was making unwelcome sexual advances towards him/her, the company is generally not liable to the employee for the supervisor's harassment.

Accordingly, many New York City employers felt confident that once they had reporting procedures in place, they could walk the workplace harassment tightrope without fear of injury, as their policies provided a sufficient safety net. However, as a result of Zakrzewska v. The New School, 2009 U.S.Dist. Lexis 5183 (S.D.N.Y. January 26, 2009), there is a hole in the safety net.

In Zakrzewska, the United States District Court for the Southern District of New York eliminated the Faragher/Ellerth defense for supervisor harassment claims brought under the NewYork City Human Rights Law ("NYCHRL"), an employment statute that covers New York City employers. Specifically, the Court held that the Faragher/Ellerth defense does not apply to NYCHRL claims where it is alleged that a supervisor engaged in workplace harassment,"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." Thus, when confronted with a claim of supervisor harassment under the NYCHRL, a New York City employer can be held liable for the harassment, even if there was no tangible employment action and the employee failed to report the harassment.

The message of Zakrzewska is clear – New York City employers must increase their efforts to monitor and prevent workplace harassment. Indeed, New York City companies should conduct mandatory harassment training for all supervisory personnel, with particular emphasis on how to identify unwelcome conduct in the workplace. To the extent you do not have training programs in place, you should contact your labor and employment counsel immediately to create a training program for your business.

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