New York City employers may soon have a definitive answer to a vexing question under the New York City Human Rights Law (NYCHRL). The 2nd Circuit Court of Appeals has asked the New York Court of Appeals to tell the federal court whether the NYCHRL permits employers to raise the affirmative defense available under U.S. Supreme Court sexual harassment rulings.
The 2nd Circuit says it needs to know because it’s handling so many New York state sexual harassment cases. The reason: More and more employees are filing their lawsuits in federal court instead of in New York state courts.
Recent case: Domenika Zakrzewska sued Manhattan’s The New School, claiming a co-worker had sexually harassed her. She did not sue under Title VII, but instead got into federal court because she is a citizen of Poland. She is suing for more than $75,000 in damages.
The New School said Zakrzewska hadn’t taken advantage of its sexual harassment process for fixing problems, and therefore the school wasn’t liable for the alleged co-worker harassment she allegedly experienced.
Zakrzewska argued that under the NYCHRL, employers can’t escape liability even when the alleged harasser is a co-worker.
The 2nd Circuit said that it really needed the New York courts to provide an answer to that question before it could proceed with the case. (Zakrzewska v. The New School, et al., No. 09-0611, 2nd Cir., 2009)
Final note: Stay tuned for updates on this important question. Meanwhile, smart New York City employers will get proactive about eliminating co-worker harassment. You should, for example, encourage employees to come forward with any complaints so you can eliminate problems before they rise to the level where they would be considered sexual harassment.
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