In Zakrzewska v. The New School, 2009 WL 139505, ___ F.Supp.2d ___ (S.D.N.Y. January 21, 2009), Judge Lewis Kaplan was presented with the issue of whether the Faragher/Ellerth affirmative defense was available under New York City Human Rights Law. He recognized that:
New York, like most other jurisdictions, takes the view that “[t]he starting point of analysis must be the plain meaning of the statutory language, since it is the statutory text which is the clearest indicator of legislative intent.” Moreover, “a court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact.”
He also acknowledged that his concerns about having a local standard
for liability that differed from the federal standard were not to play
a role in the decision, but rather are "considerations relevant to
policy judgments properly made by legislatures..." (emphasis supplied).
Looking at the provisions of Admin. Code § 8-107(13)(b), he said that:
the local law on its face appears to impose vicarious liability on an employer for discriminatory acts of (1) a manager or supervisor, without regard to whether the employer or another of its managers or supervisors knew or should have known of those acts, and (2) a co-worker, provided the employer, or a manager or supervisor, knew of and acquiesced in, or should have known of, the co-worker’s acts,among other circumstances.
He concluded that:
the plain language of Section 8-107, subd. 13(b), is inconsistent with the defense crafted by the Supreme Court in Faragher and Ellerth. It creates vicarious liability for the acts of managerial and supervisory employees 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. Likewise, it provides for employer liability for the discriminatory acts of co-workers in like circumstances provided only that a managerial or supervisory employee knew of and acquiesced in such conduct or should have known of what was going on and failed to take reasonable preventive measures. Given the lack of any substantial reason to believe that the New York Court of Appeals would not apply Section 8-107, subd.13(b), as it is written and the mandate of the Erie doctrine, the Court holds that Faragher-Ellerth does not apply in NYCHRL cases and therefore denies summary judgment dismissing the sexual harassment claim against [defendant] [emphases supplied].
