While the NYSHRL is very comprehensive in its provisions and protections against employment discrimination, harassment, and retaliation, it also provides special defenses for defendants accused of engaging in discriminatory conduct. In law, a special defense implies a legal reason regarding why a defendant should not be found responsible and, accordingly, liable for an allegation. While the task of proving them is the defendant’s responsibility, special defenses may be raised in response to allegations by a complainant or plaintiff. Notably, a defendant may submit more than one defense, which the plaintiff must respond to in a reply to special defenses pleading.

The NYSHRL has several special defenses, which include, but are not limited to:

  1. Faragher-Ellerth Harassment Defense

The popular Faragher-Ellerth defense was born out of two landmark opinions provided by the Supreme Court of the United States. Generally, the Faragher-Ellerth defense was created by the Supreme Court with the aim of providing employers with a way to defend themselves against vicarious liability (a legal provision through which an employer (company or individual) is held responsible and liable for the conduct and behavior of their employees or others) arising from claims of sexual harassment against a supervisory employee.

Pursuant to N.Y. Exec. Law § 296(1)(h), the Faragher-Ellerth defense is not applicable, implying that the fact that an employee failed to complain about harassment to an employer cannot qualify as the reason why the latter should be held responsible for a harassment claim.

  1. Plan approved by the New York State Division of Human Rights (NYSDHR)

Pursuant to N.Y. Exec. Law § 296(12), this defense concerns a situation where an employer increases, as a way of complying and executing an NYSDHR-approved plan, the employment of individuals of a minority group that, compared to the general population, has a disproportionately high rate of unemployment.

  1. Undue Hardship Defense

Pursuant to N.Y. Exec. Law § 296(10)(a), the undue hardship defense concerns where an employer (whether a company or individual) is able to show that it would suffer undue hardship on the conduct of its business should it provide a reasonable accommodation to the sincerely held religious practice or observance of prospective employee(s) or employee(s).

  1. Religious Organization Exception

Pursuant to N.Y. Exec. Law § 296(11), a religious organization may take any employment actions or even give preference in employment or hiring to members of the same religion with the intention of promoting its religious principles.

  1. Vicarious Liability

As the court ruled in a landmark case (See Matter of Medical Express Ambulance Corp. v. Kirkland, 913 N.Y.S.2d 296, 298 (App. Div. 2010)), unless an employer becomes a party to an employee’s discriminatory conduct by approving, condoning, or encouraging it, such an employer cannot be held liable for such conduct.

  1. Bona Fide Occupational Qualification Defense

Pursuant to N.Y. Exec. Law § 296(1)(d), (1-a)(d), as long as a bona fide occupational qualification is the basis for engaging in the specific practice(s), an employer may take part in certain practices that might, on the contrary, be considered to amount to unlawful discrimination.

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