Labor & Employment Alert: New York City Human Rights Law Does Not Permit Faragher-Ellerth Defense

New York State’s highest court declared on May 6 that the affirmative defense to sexual harassment claims known as the “Faragher-Ellerth” defense does not apply to sexual harassment and retaliation claims brought under section 8-107 of the New York City Human Rights Law. This is a significant departure from how employers previously thought the law would be interpreted and applied by courts. This Alert explores the New York Court of Appeals’ recent decision in Zakrzewska v. The New School (2010 NY Slip Op 03796 – May 6, 2010) and how it may affect employers going forward.