Do You Have to Report Harassment to HR Before Bringing a Claim in New York?

The answer depends on which law the claim is brought under. Under federal law, an employer can sometimes defeat a supervisor-harassment claim by proving that it took reasonable care and that the employee unreasonably failed to use its complaint procedure.⁠^[1]

Under the New York State Human Rights Law (NYSHRL), the fact that a person did not complain to the employer is not determinative of the employer's liability, and under the New York City Human Rights Law (NYCHRL) the Court of Appeals has held that the federal defense does not apply.⁠^[4][5]

So the effect of a missing internal complaint differs by layer. Reporting still has practical and legal effects under all three, which the second half of this page covers.

The three layers side by side

Question	Federal (Title VII)	New York State (NYSHRL)	New York City (NYCHRL)
Is there a defense built on the employee's failure to complain?	Yes, the Faragher/Ellerth affirmative defense, for supervisor harassment with no tangible employment action.⁠[1][3]	The statute says the failure to complain "shall not be determinative" of liability.⁠[4]	No. The plain language of the NYCHRL precludes the Faragher/Ellerth defense.⁠[5]
Who has to prove what?	The employer, by a preponderance of the evidence, both elements of the defense.⁠[1]	The statute does not make an internal complaint irrelevant; it says only that its absence does not decide the question.⁠[4]	For a manager's or supervisor's conduct the employer is liable without a further showing of employer fault.⁠[8]
What does an anti-harassment policy do for the employer?	It bears on the first element of the defense, reasonable care.⁠[2]	Adopting the State model policy is not a defense; the existence of an effective policy and procedure is one circumstance considered.⁠[9]	It is considered in mitigation of civil penalties and punitive damages, and in deciding "should have known" liability for coworker conduct.⁠[10]

Federal law: the Faragher/Ellerth defense

Two 1998 U.S. Supreme Court decisions, Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, set the federal rule. An employer is vicariously liable for an actionable hostile environment created by a supervisor with immediate or successively higher authority over the employee.⁠^[1]

When no tangible employment action was taken, the employer may raise an affirmative defense with two necessary elements: (a) the employer exercised reasonable care to prevent and promptly correct harassing behavior, and (b) the employee unreasonably failed to take advantage of preventive or corrective opportunities the employer provided, or to avoid harm otherwise.⁠^[1]

The second element is the one that turns on reporting. The Supreme Court said that showing an unreasonable failure to use the employer's complaint procedure will normally suffice to satisfy the employer's burden on that element.⁠^[2]

When the federal defense is not available

• Tangible employment action. No affirmative defense is available when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion or undesirable reassignment.⁠^[3]
• What counts as tangible. A tangible employment action is a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.⁠^[11]
• Resignations. In a constructive discharge case, the employer keeps the defense unless the employee quit in reasonable response to an employer-sanctioned adverse action that officially changed the employee's status, such as a humiliating demotion or an extreme cut in pay. See constructive discharge in New York.⁠^[12]

"Unreasonably" is a fact question

The defense is not automatic. Before Faragher and Ellerth, the Supreme Court had already said that the mere existence of a grievance procedure and a policy against discrimination, coupled with the employee's failure to invoke the procedure, does not necessarily insulate the employer from liability.⁠^[13]

In 2010, in Gorzynski v. JetBlue Airways, the Second Circuit, the federal appeals court that covers New York, held that an employer is not entitled to the defense as a matter of law simply because its policy let the employee complain to people other than the alleged harasser. The court said there is no requirement that an employee exhaust all possible avenues where circumstances warrant the belief that some or all of them would be ineffective or antagonistic. Whether the employee acted unreasonably depends on the facts and circumstances and can be a question for the jury.⁠^[14]

Coworkers and non-employees: reporting goes to what the employer knew

The federal defense concerns supervisors, and for this purpose a supervisor is someone the employer has empowered to take tangible employment actions against the employee.⁠^[15]

If the harasser is a coworker, the employer is liable under federal law only if it was negligent in controlling working conditions. In the Second Circuit, the employee has to show that the employer failed to provide a reasonable avenue for complaint, or that it knew or in the exercise of reasonable care should have known about the harassment and failed to take appropriate remedial action.⁠^[16][17]

Under the EEOC's regulation, the same knew-or-should-have-known approach applies to sexual harassment of employees by non-employees in the workplace. See harassment by customers, clients and vendors.⁠^[18]

In those situations a report is one way to show what the employer knew and when. That is a practical observation, not a legal rule.

New York State law: not complaining "shall not be determinative"

The NYSHRL's harassment provision, Executive Law § 296(1)(h), states that the fact that a person did not make a complaint about the harassment to the employer "shall not be determinative" of whether the employer is liable.⁠^[4]

That provision took effect on October 11, 2019, and applies only to claims accruing on or after that date.⁠^[19]

Two limits are worth knowing. First, the statute does not say an internal complaint is irrelevant. It says only that the lack of one does not decide liability.⁠^[4]

Second, in case law developed before the 2019 amendments, the Court of Appeals held that an employer cannot be held liable under the NYSHRL for an employee's discriminatory act unless the employer became a party to it by encouraging, condoning or approving it. The court restated that description of State law in 2021, in a passage that did not address the 2019 amendments.⁠^[20][21]

The guide to employer liability for supervisors and coworkers covers how these State rules fit together.

New York City law: the federal defense does not apply

In Zakrzewska v. New School, decided in 2010, the Court of Appeals was asked whether the Faragher/Ellerth defense applies to sexual harassment and retaliation claims under the NYCHRL. It answered no, holding that the plain language of the NYCHRL precludes the defense.⁠^[5]

The court's holding rests on the City statute's own liability rule, Administrative Code § 8-107(13):⁠^[5][8]

• An employer is liable for discriminatory conduct by an employee or agent who exercised managerial or supervisory responsibility.⁠^[8]
• For a non-supervisory employee, the employer is liable if it knew of the conduct and acquiesced or failed to take immediate and appropriate corrective action. The employer is deemed to know when another employee or agent with managerial or supervisory responsibility knew.⁠^[22]
• The employer is also liable if it should have known of the conduct and failed to exercise reasonable diligence to prevent it.⁠^[23]

The Court of Appeals explained that even where the statute's mitigation provisions apply, compensatory damages, costs and reasonable attorney's fees are still recoverable. An employer's anti-discrimination policies and procedures shield it from liability itself only where it should have known of a non-supervisory employee's acts.⁠^[24]

The NYCHRL generally applies to employers with four or more persons, but a gender-based harassment claim can be brought against any employer in the city.⁠^[25][26]

Why reporting still matters under every layer

1. One set of facts can raise claims under more than one law. The federal defense does not apply to a NYCHRL claim, but the employer may still raise it against a Title VII claim based on the same events.⁠^[1][5]
2. For coworker harassment, employer knowledge is part of the test. Under the NYCHRL, one route to employer liability for a non-supervisor's conduct is that the employer knew of it and failed to take immediate and appropriate corrective action; federal law asks a similar knew-or-should-have-known question.⁠^[22][17]
3. Reporting is protected activity. Under federal law, protected opposition includes informal protests such as complaints to management, and the NYSHRL and NYCHRL forbid retaliation against a person who opposed a forbidden practice.⁠^[27][28][29]
4. What the State model policy says about good-faith reports. The State model policy says a person is protected from retaliation if the person had a good-faith belief that the practices were unlawful; it adds that intentionally false charges are not protected.⁠^[30]
5. The complaint should say what the problem is. Under federal law, the employer has to have understood, or reasonably been able to understand, that the complaint was directed at conduct Title VII prohibits.⁠^[31]
6. Employers in New York State have to offer a channel for sexual harassment complaints. Under Labor Law § 201-g, every employer has to adopt the State model sexual harassment prevention policy or one that equals or exceeds its minimum standards, and the model has to include a standard complaint form and a procedure for the timely and confidential investigation of complaints.⁠^[32][33]
7. Supervisors are told to act. Under the State model policy, a supervisor or manager who witnesses harassment is required to report it, and supervisors can be disciplined for failing to report suspected sexual harassment.⁠^[34][35]

How to make a report, and what the employer does next, are covered in how to report harassment or discrimination at work, what happens in an HR investigation and whether HR is confidential.

Reporting internally does not pause the filing periods

Waiting for an internal process to finish can use up filing time. The EEOC says its time limits generally will not be extended while a person tries to resolve a dispute through an internal grievance procedure, a union grievance, arbitration or mediation.⁠^[6]

New York State's model policy gives employees the same warning about State deadlines: complaining internally does not extend the time to file with the Division of Human Rights or in court.⁠^[7]

The periods themselves differ by layer. In New York the federal period for an EEOC charge is 300 days from the alleged harm, while a complaint to the State Division of Human Rights has a three-year period for claims arising on or after February 15, 2024.⁠^[36][37][38]

City agency, court and public-employer periods are different again. The full table is in New York employment claim deadlines.

What people commonly get wrong

• "You have to report internally before you have a claim." Under the NYSHRL, the failure to complain is not determinative of liability, and the NYCHRL does not recognize the federal defense.⁠^[4][5]
• "If you never complained, it makes no difference." Under federal law, an unreasonable failure to use the employer's complaint procedure will normally satisfy the second element of the employer's defense where a supervisor harassed and no tangible employment action followed.⁠^[1][2]

For every defense an employer may raise and which layer it belongs to, see employer defenses in harassment and discrimination cases. For protection after a report, see retaliation for reporting sexual harassment.