The United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge) certified the following question to this Court: does the affirmative defense to employer liability articulated in Faragher v. City of Boca Raton,
Before: WINTER, CABRANES, and HALL, Circuit Judges.
This interlocutory appeal presents a discrete question of law certified to us pursuant to 28 U.S.C. § 1292(b) by the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge): "Does the affirmative defense to employer liability articulated in Faragher v. City of Boca Raton, 524 U.S. 775 (1998)and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) apply to sexual harassment and retaliation claims under New York City Administrative [Code] Section 8-107?" Zakrzewska v. The New School, 598 F. Supp. 2d 426, 437-438 (S.D.N.Y. 2009).
Plaintiff Dominika Zakrzewska sued her co-worker, defendant Kwang-Wen Pan, and her former employer, defendant-appellant The New School ("TNS"), alleging sexual harassment and retaliation in violation of the New York City Human Rights Law ("NYCHRL"), which is codified in part in the New York City Administrative Code, see N.Y.C. AD. C. § 8-107.*fn1 Plaintiff did not bring any claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.*fn2 ("Title VII"). On a motion for summary judgment by TNS, the issue of whether the affirmative defense to employer sexual harassment liability for cases arising under Title VII set forth in Faragher and Burlington Industries, Inc. applies under the NYCHRL. TNS maintains that this affirmative defense does apply and that TNS has satisfied its requirements. Plaintiff, however, argues that this affirmative defense does not apply to the NYCHRL. Furthermore, plaintiff argues, if the Faragher-Ellerth defense does apply, there is a genuine issue of material fact as to whether TNS has satisfied its requirements and, therefore, summary judgment is inappropriate. Zakrzewska, 598 F. Supp. 2d at 431-32 (footnotes omitted).
The District Court-in a thorough and comprehensive opinion-summarized the FaragherEllerth defense as follows:
In Faragher and Ellerth, the Supreme Court held that an employer is not liable under Title VII for sexual harassment committed by a supervisory employee if it sustains the burden of proving that (1) no tangible employment action "such as discharge, demotion, or undesirable reassignment" was taken as part of the alleged harassment, [Ellerth, 524 U.S. at 765,] (2) "the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior," [Faragher, 524 U.S. at 807,] and (3) "the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise[, id.]"
Zakrzewska, 598 F. Supp. 2d at 432 (footnotes omitted). The District Court then concluded that, if the Faragher-Ellerth defense applied to plaintiff's state law claims, TNS was entitled to judgment as a matter of law. See id. at 432-34.
Turning its attention to whether the Faragher-Ellerth defense was available, the District Court examined section 8-107, subdivision 13(b) of the New York City Administrative Code, which provides:
An employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of subdivision one or two of this section only where:
(1) the employee or agent exercised managerial or supervisory responsibility; or
(2) the employer knew of the employee's or agent's discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action; an employer shall be deemed to have knowledge of an employee's or agent's discriminatory conduct where that conduct was known by another employee or agent who exercised managerial or supervisory responsibility; or
(3) the employer should have known of the employee's or agent's discriminatory conduct and failed to exercise reasonable diligence to ...