The district court certified the following question to the Second Circuit: “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 section 8-107 of the New York City Administrative Code?” The Second Circuit now kicks the can to the New York Court of Appeals.
Zakrzewska v. The New school, No. 09-0611 (2d Cir. July 27, 2009): It is a steady theme of the past decade or more of civil rights litigation — look to states and localities to deliver more liberal rights and remedies than under federal law. So while Title VII plaintiffs must fend off the Faragher/Ellerth defense in supervisory sex harassment case, other jurisdictions may decline to recognize this defense altogether. Under the New York City Administrative Code, with an expansive sex discrimination law that is enforceable by a private right of action, courts have been unable to decide whether the defense ought to apply.
Now the Second Circuit gives the State of New York’s highest court a chance to resolve this issue. Holds the panel: “[We conclude that the question whether the Faragher-Ellerth defense applies to section 8-107, subdivision 13(b) of the New York City Administrative Code is appropriate or certification. First, this question has not yet been addressed by the New York Court of Appeals. [fn. omitted] Second, this is a question of considerable significance. As the District Court noted, employment discrimination cases are a substantial portion of the caseload for the District Courts of this Circuit. See Zakrzewska, 598 F. Supp. 2d at 437. Because plaintiffs often assert claims under state and city antidiscrimination laws, a resolution of the vicarious liability standards and defenses applicable under those statutes is needed. Although a decision from our Court is binding only within in the federal courts of our Circuit, our interpretation of the New York City Administrative Code would undoubtedly have some impact on employment discrimination claims pending in the state courts as well. We therefore proceed with caution and deference to the New York Court of Appeals. Third and finally, the answer to this question is necessary to the resolution of this lawsuit. See Zakrzewska, 598 F. Supp. 2d at 437 (‘[T]his is a controlling question of law, the resolution of which would materially advance the ultimate termination of this litigation, as the application of Faragher-Ellerth here would result in dismissal of the action against TNS.’).”