What Employers Argue: Common Defenses in Harassment, Discrimination and Retaliation Cases

Employers answer workplace claims with a fairly stable set of arguments: there was a lawful reason, the conduct was trivial, the company took reasonable care, the accommodation was too hard, the claim is late or was brought in the wrong place. Which of these exist, and who has to prove them, depends on the layer of law. An affirmative defense is one the defendant raises and, as the Second Circuit has put it for most such defenses, has the burden of proving.⁠^[6] Under federal law, for example, the Faragher/Ellerth defense is subject to proof by the employer by a preponderance of the evidence.⁠^[2] This page sets the defenses side by side without assuming that either side is right.

Which defenses exist under which law?

Defense	Federal	New York State	New York City
Legitimate, nondiscriminatory reason	Employer articulates the reason; the burden of persuasion stays with the plaintiff.⁠[1]	See the note on State law below.⁠[9][10]	Employee prevails by proving discrimination was one of the motivating factors.⁠[11]
Same decision anyway	If the employer proves it, Title VII remedies are limited.⁠[12]	Not covered on this page.	Not covered on this page.
Reasonable care and failure to complain (Faragher/Ellerth)	Affirmative defense to supervisor harassment with no tangible employment action.⁠[2][3]	Failure to complain is not determinative of liability.⁠[5]	Does not apply.⁠[4]
Petty slights or trivial inconveniences	Part of the employee's own showing: simple teasing, offhand comments and isolated incidents, unless extremely serious, are not enough under Title VII.⁠[13]	Affirmative defense.⁠[5]	Affirmative defense; the employer has the burden.⁠[6]
Undue hardship	Employer demonstrates.⁠[7]	Statutory factors listed.⁠[14]	Employer has the burden of proving.⁠[8]
Cannot do the job even with accommodation	Plaintiff bears the burden of showing an accommodation exists (Second Circuit).⁠[15]	At trial the plaintiff has to prove a reasonable accommodation existed.⁠[16]	Affirmative defense for the employer.⁠[17]

"We had a legitimate reason"

Under federal law this is step two of the McDonnell Douglas framework. The employer must articulate some legitimate, nondiscriminatory reason, and the employee must then have a fair opportunity to show the reason is a pretext. The ultimate burden of persuasion remains with the plaintiff.⁠^[1] In Title VII retaliation cases the employer likewise articulates a legitimate, non-retaliatory reason.⁠^[18] Under federal law, evidence that the stated justification is false, together with the prima facie case, may permit a finding of discrimination.⁠^[19]

Under the New York City Human Rights Law (NYCHRL), an employer seeking summary judgment bears the burden of showing that no jury could find it liable under any evidentiary route, including mixed motive.⁠^[20] The full order of proof is in how discrimination and retaliation are proved.

On New York State law: in 2004 the Court of Appeals described State Human Rights Law standards for recovery as the same as Title VII's, and since an amendment signed on August 12, 2019, the State statute has directed that it be construed liberally regardless of whether federal civil rights laws have been so construed.⁠^[9][10][21] This page does not cover a State-law proof standard for claims that accrued after that amendment (so the table does not fill that cell with a rule); how the older Court of Appeals rule on employer liability, described below, applies to those claims; or arguments such as the "same actor" inference and after-acquired evidence. Those are questions to put to a lawyer.

"We would have made the same decision anyway"

Under Title VII, a violation is established when a protected characteristic was a motivating factor, even though other factors also motivated the practice.⁠^[22] If the employer then proves it would have taken the same action without the unlawful motive, a federal court may grant declaratory relief, injunctive relief and attorney's fees, but may not award damages or order reinstatement, hiring, promotion or back pay.⁠^[12] That is a limit on federal remedies. For Title VII retaliation the standard is different: the employee has to prove but-for causation.⁠^[23]

"We took reasonable care and the employee never complained"

Federal law

Under Title VII an employer is vicariously liable for a hostile environment created by a supervisor.⁠^[2] When no tangible employment action was taken, the employer may raise an affirmative defense with two necessary elements: that it exercised reasonable care to prevent and promptly correct harassing behavior, and that the employee unreasonably failed to take advantage of preventive or corrective opportunities or to avoid harm otherwise.⁠^[2] The defense is not available when the supervisor's harassment culminates in a tangible employment action such as discharge, demotion or undesirable reassignment.⁠^[3]

Several limits apply under federal law. An employee's unreasonable failure to use the employer's complaint procedure will normally satisfy the second element.⁠^[24] But the mere existence of a grievance procedure and a policy, coupled with a failure to use it, does not necessarily insulate the employer.⁠^[25] And in the Second Circuit, whether an employee unreasonably failed to use the procedure depends on the facts and can be a question for the jury.⁠^[26] For harassment by a co-worker, the federal rule is negligence: the employer is liable only if it was negligent in controlling working conditions.⁠^[27]

New York City law

The Court of Appeals held in Zakrzewska v. New School that the plain language of the NYCHRL precludes the Faragher/Ellerth defense.⁠^[4] Under the City statute an employer is liable for discrimination or harassment by an employee or agent who exercised managerial or supervisory responsibility.⁠^[28] Where a supervisor harassed, or the employer knew, anti-discrimination policies mitigate civil penalties and punitive damages only; compensatory damages, costs and attorney's fees remain recoverable. Policies shield against liability itself only where the employer should have known of a non-supervisory employee's conduct.⁠^[29] The City statute lists the mitigation factors, including a meaningful complaint procedure, a firm and effectively communicated policy, an education program and a record of no or relatively few prior incidents.⁠^[30][31]

New York State law

The New York State Human Rights Law (NYSHRL) says that the fact that an individual did not complain to the employer about harassment shall not be determinative of whether the employer is liable.⁠^[5] Separately, Court of Appeals case law developed before the 2019 amendments holds that an employer cannot be held liable under the State law for an employee's discriminatory act unless it became a party to the act by encouraging, condoning or approving it, and the Court restated that rule in 2021 in a case decided under the City law.⁠^[32][33] See supervisor versus co-worker harassment and whether you have to report to HR first.

"It was a petty slight" or "it had nothing to do with a protected characteristic"

Under the NYSHRL, harassment is unlawful regardless of whether it would be considered severe or pervasive, and it is an affirmative defense that the conduct does not rise above what a reasonable victim of discrimination with the same protected characteristic or characteristics would consider petty slights or trivial inconveniences.⁠^[5] Under the NYCHRL the employer has the burden of proving triviality, and it is entitled to summary judgment on that ground only if a reasonable jury could not interpret the conduct as anything more than petty slights or trivial inconveniences.⁠^[6][34] See the petty slights defense.

A different argument is that the conduct was not because of a protected characteristic at all. That goes to what the employee has to show. Title VII does not prohibit all verbal or physical harassment in the workplace; the conduct has to be discrimination because of a protected characteristic.⁠^[35] Under the NYSHRL, harassment is unlawful when it subjects an individual to inferior terms, conditions or privileges of employment because of membership in a protected category.⁠^[5] Under the NYCHRL the plaintiff still bears the burden of showing a discriminatory motive, and an overbearing or obnoxious boss is not enough.⁠^[36]

Defenses in disability and accommodation cases

• Undue hardship. Under the ADA, undue hardship means an action requiring significant difficulty or expense, judged by statutory factors.⁠^[37] The NYSHRL lists its own factors, including the size of the business and the nature and cost of the accommodation.⁠^[14] Under the NYCHRL the employer has the burden of proving undue hardship.⁠^[8] See undue hardship.
• The employee could not do the job. Under the NYCHRL it is an affirmative defense that the person could not, with reasonable accommodation, satisfy the essential requisites of the job.⁠^[17] The Court of Appeals has said that at trial on a State-law claim the plaintiff has to prove that a reasonable accommodation existed, while the employer bears the burden on that issue under City law.⁠^[16]
• Direct threat. The ADA lets an employer require that an individual not pose a direct threat, meaning a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.⁠^[38] The State regulation defines direct threat as a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation.⁠^[39]
• Conduct standards. The State regulation says the NYSHRL does not require accommodation of behaviors that do not meet workplace behavior standards consistently applied to all similarly situated employees, even if caused by a disability.⁠^[40]
• Good-faith efforts. In an ADA failure-to-accommodate case, compensatory and punitive damages may not be awarded where the employer demonstrates good-faith efforts, in consultation with the employee, to identify and make a reasonable accommodation.⁠^[41]
• "We talked it through." Under the NYCHRL, compliance with the cooperative dialogue duty is not a defense to a claim of not providing a reasonable accommodation.⁠^[42]

Defenses in retaliation cases

Under Title VII, an employer may argue that the complaint was not protected activity, that the action was not materially adverse, or that it had another cause. The employer must have understood, or reasonably could have understood, that the complaint was about conduct Title VII prohibits.⁠^[43] The action must be one a reasonable employee would have found materially adverse.⁠^[44] And the employee has to prove but-for causation.⁠^[23] Under the NYCHRL, the act must be reasonably likely to deter protected activity but need not be a materially adverse change, and the employer gets summary judgment only if the plaintiff cannot show retaliation played any part in the decision.⁠^[45][46] New York State's whistleblower statute, Labor Law § 740, has a defense in its own text: that the action was predicated on grounds other than the employee's exercise of protected rights.⁠^[47]

Threshold and procedural defenses

• Too small to be covered. Title VII covers employers with 15 or more employees.⁠^[48] The NYSHRL covers all employers within the state.⁠^[49] The NYCHRL generally excludes an employer with fewer than four persons in its employ throughout the relevant period, but not for gender-based harassment claims.⁠^[50][51]
• Too late. The periods differ by layer and forum, and under federal law the charge-filing period is subject to waiver, estoppel and equitable tolling.⁠^{[52][53][54][55]} See claim deadlines.
• Wrong forum. Under the NYSHRL a person may sue in court unless that person filed a complaint on the claim with the Division of Human Rights or a local commission; the right to sue is preserved where the Division dismisses the complaint for administrative convenience, for untimeliness, or because the election of remedies is annulled.⁠^[56][57] Under the NYCHRL, a person who filed a complaint about the same practice with the NYC Commission on Human Rights or the State Division generally cannot also bring a City-law court action.⁠^[58] See election of remedies.
• Wrong defendant. In the Second Circuit individuals with supervisory control may not be held personally liable under Title VII.⁠^[59] Under the NYSHRL a corporate employee is not individually liable as an "employer," though any person may be liable for aiding and abetting.⁠^[60][61] Under the NYCHRL, the Court of Appeals has said individuals may incur liability for their own discriminatory conduct, for aiding and abetting such conduct by others, or for retaliation against protected conduct.⁠^[62]
• Arbitration or a shortened deadline in a contract. Under the Federal Arbitration Act a written arbitration agreement is enforceable "save upon such grounds as exist at law or in equity for the revocation of any contract or as otherwise provided in chapter 4."⁠^[63] Under chapter 4, at the election of the person alleging a sexual harassment or sexual assault dispute, a pre-dispute arbitration agreement is not valid or enforceable for a case relating to that dispute.⁠^[64] A provision in an employment agreement that shortens the period to bring a City-law court action is void.⁠^[65] See arbitration agreements.
• Religious employers. Title VII and the NYSHRL each let religious organizations prefer members of their own religion in employment.⁠^[66][67] Under the NYSHRL, exemptions are construed narrowly.⁠^[10]

Arguments about damages

Some defenses go to the amount, not to liability. Under Title VII, back pay is reduced by interim earnings or amounts earnable with reasonable diligence, and a claimant forfeits back pay by refusing a job substantially equivalent to the one denied.⁠^[68][69] Also under Title VII, an employer is not vicariously liable for punitive damages for a manager's discriminatory decisions that are contrary to its good-faith efforts to comply with the statute.⁠^[70] Under the NYCHRL, punitive damages turn on willful or wanton negligence, recklessness or a conscious disregard of the rights of others.⁠^[71] The guide to damages covers the rest.

What people get wrong

• "A policy is a shield." New York State's model policy says that adopting it does not constitute a defense to charges of unlawful sexual harassment.⁠^[72] Under the NYCHRL, the Court of Appeals has said an employer's policies shield against liability only where the employer should have known of a non-supervisory employee's conduct; otherwise they go to civil penalties and punitive damages.⁠^[29]
• "The federal defenses apply to State and City claims." Courts must analyze NYCHRL claims separately and independently from federal and State claims.⁠^[73]

Employers and managers looking for the duties behind these defenses can turn to what the law expects of managers and small employers.