Appellate Division Affirms Summary Judgment For Cosmic Diner, Applying Continuing Violations Doctrine, Where Employee Failed to Present Any Specific Instances of Harassment Within Statute of Limitations Period

In Mejia v T.N. 888 Eighth Ave. LLC Co., the Appellate Division First Department affirmed summary judgment for the employer, applying the Continuing Violations doctrine, because according to the court, the employee failed to testify or put forward other evidence of the dates of the alleged harassment within the 3-year statute of limitations period applicable to New York City Human Rights Law, although the employee had done so for instances falling outside the statute of limitations period.

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Faragher-Ellerth Defense Does Not Apply to Claims Brought Under the New York City Human Rights Law, Court Says

New York's highest court--the New York Court of Appeals--held in Zakrzewska v New School that the Faragher-Ellerth defense does not apply to claims brought under the New York City Human Rights Law. The Faragher-Ellerth defense provides as follows: "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, (2) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (3) the plaintiff employee unreasonably failed to take advantage of any preventive or [*2]corrective opportunities provided by the employer or to avoid harm otherwise" Instead, the…

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