New Rules for Harassment Claims in New York City

Two January 2009 decisions alter the landscape for New York City workplace harassment law.

In Williams v. The New York City Housing Authority, 872 NYS2d 27 (1st Dept. 2009), a four-judge majority of an Appellate Division panel applied The Restoration Act-2005 amendments to the New York City Human Rights Law (City HRL) which call for judicial interpretation so as to effectuate the law’s “uniquely broad and remedial purposes” – and wrote that the long-standing federal standard for determining whether there exists actionable harassment because of a hostile work environment, namely that incidents are “severe and pervasive,” does not apply to claims brought under the City HRL.

Almost simultaneously in Zakrzewska v. The New School, 06 Civ. 5463 (LAK), 2009 U.S. Dist. LEXIS 5183 (SDNY Jan. 26, 2009), a federal district court ruled that under the City HRL, New York City employers accused of sexual harassment are not entitled to an affirmative defense (known as Faragher/Ellerth for the U.S. Supreme Court cases that first recognized it)¹ under which there is no employer liability where there exists an internal complaint investigation and resolution process which the plaintiff unreasonably fails to utilize and/or where the employer promptly responds to a harassment complaint.

The principle that workplace harassment may constitute unlawful employment discrimination is firmly embedded in equal employment opportunity laws.² Title VII, the New York State Human Rights Law and the City HRL all prohibit employer discrimination against individuals in terms, conditions and privileges of employment, where the discrimination occurs because of the individual’s membership in a class protected by law.

Certain types of discrimination because of membership in a protected class are tangible: failures to hire; refusals to promote; unequal pay, benefits, training or assignments; discharge or discipline; and/or conditioning employment or benefits on sexual favors. However, other behavior such as intimidation, ridicule, insult or in the case of gender, remarks connoting sexual meaning, is not tangible in the same sense even though it may impact work life just as much as other discrimination. Harassment is thus a species of discrimination. Importantly, neither Title VII, the New York State Human Rights Law, nor the City HRL define – or even mention – the term.

So as the Williams court wrote, a court’s task when faced with an allegation of harassment is to identify what behavior without tangible effect imposes inferior terms and conditions of employment on an individual because of protected class membership.³ In that context, courts have recognized that because the workplace is an environment of social interaction, behaviors that might be seen as “because of” a person’s protected class membership in fact are not discriminatory because they are inadvertent and unrepeated, or welcome, or regarded by the involved person as inconsequential. It is from this perspective that the severe and pervasive test was born. Harris v. Forklift Sys., 510 U.S. 17 (1993).

Starting in the 1970s courts around the country began to recognize the viability of workplace harassment claims. The seminal case was Rogers v. Equal Employment Opportunity Commission, 454 F.2d 234 (5th Cir. 1971), cert denied 406 U.S. 957 (1972), where the U.S. Court of Appeals for the Fifth Circuit held a racially discriminatory and offensive work environment violated Title VII.

Time was when employment discrimination tended to be viewed as a series of isolated and distinguishable events, manifesting itself, for example, in an employer’s practices of hiring, firing, and promoting. But today employment discrimination is a far more complex and pervasive phenomenon, as the nuances and subtleties of discriminatory employment practices are no longer confined to bread and butter issues.

Accordingly, the Rogers court stated that the phrase “terms, conditions or privileges of employment”

In Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981), this reasoning was applied to sex-based harassment in a case where the plaintiff alleged that because she spurned a supervisor’s sexual advances, her career progress was slowed. The court held sexual harassment to be an unlawful discriminatory practice: