OPINION OF THE COURT

READ, J.

In her second amended complaint, dated February 12, 2008, Dominika Zakrzewska brought a diversity suit against Kwang-Wen Pan and The New School in the United States District Court for the Southern District of New York, asserting claims for sexual harassment and retaliation under the New York City Human Rights Law (NYCHRL), title 8 of the New York City Administrative Code. The United States Court of Appeals for the Second Circuit has asked us whether

For the reasons that follow, we answer this question in the negative.

I.

Zakrzewska enrolled as a freshman at the School in the fall of 2002, and worked part time at the Print Output Center, located within the School's Academic Computing Center, beginning in April 2003. She alleges in her second amended complaint that Pan was her "immediate supervisor" at the Output Center; and that he subjected her to sexually harassing e-mails and conduct, beginning in January 2004 and continuing through May 2005, when she complained to School officials. She further claims that from August 2005 through 2006, Pan covertly monitored her Internet usage at work in retaliation for her accusation.*

On August 13, 2008, the School moved for summary judgment to dismiss Zakrzewska's complaint, arguing that it was not vicariously liable for Pan's alleged sexual harassment, and that Zakrzewska could not establish a prima facie case of retaliation. For purposes of ruling on the motion, the District Court assumed that Zakrzewska had shown that she was sexually harassed by Pan; and mentioned that "there [was] at least some evidence that Pan was a manager or supervisor" (Zakrzewska, 598 F Supp 2d at 434), or, put another way, that "there [was] evidence from which a jury could conclude that Pan was a supervisory or managerial employee" (id. at 437).

The Judge then remarked that federal and state courts usually treat title VII of the Civil Rights Act of 1964 and local anti-discrimination laws as "substantially co-extensive" and therefore examine claims of employer liability for an employee's unlawful discriminatory acts under "the same analytical lens" (id. at 431). But here, the parties disagreed as to whether title VII's Faragher-Ellerth defense to sexual harassment liability applied under the NYCHRL; and, if it did, whether the School had satisfied its requirements, or, alternatively, a genuine issue of material fact remained (id. at 432). As explained by the District Court, the Faragher-Ellerth defense provides that

Commenting that Faragher-Ellerth's role in NYCHRL cases was "not free from doubt," the Judge elected to consider first whether the School would be entitled to dismissal of the sexual harassment claim under Faragher-Ellerth (id. at 437). After reviewing the record, he concluded that the School was, indeed, "entitled to judgment as a matter of law on the sexual harassment claim, assuming that the Faragher-Ellerth defense applie[d] to [Zakrzewska's] NYCHRL claim" (id. at 434). Having resolved this issue in the School's favor, the Judge next examined whether the NYCHRL, in fact, makes the Faragher-Ellerth defense available to employers sued for sexual harassment.

Section 8-107 (1) (a) of the NYCHRL prohibits discrimination on the basis of gender, and section 8-107 (13) (b) states that

Based on this text, the District Court concluded that

He pointed out, however, that because Faragher-Ellerth's relevance in NYCHRL cases was "an open question in [the] Circuit," he was obliged to decide "whether the New York courts would be likely to apply Faragher-Ellerth or to adopt a different interpretation of [section 8-107 (13) (b)]" (id. at 435).

Noting that New York, like most states, emphasizes fidelity to the text when interpreting a statute, the District Court concluded that

As for Zakrzewska's retaliation claim, the Judge first decided that there were disputed issues of material fact. Further, since retaliation is an unlawful discriminatory practice under the NYCHRL, he noted that the School would be vicariously liable for any retaliation by Pan by virtue of section 8-107 (13) (b), assuming that Faragher-Ellerth did not apply. The Judge therefore denied the School's motion for summary judgment dismissing Zakrzewska's complaint.

The District Court then certified an interlocutory appeal to the Second Circuit pursuant to 28 USC § 1292 (b) because he was of the opinion that Faragher-Ellerth's applicability under the NYCHRL was "a controlling question of law," as to which there was "substantial ground for difference of opinion ... the resolution of which would materially advance the ultimate termination of this litigation" (598 F Supp 2d at 437). The Judge observed that employment discrimination cases figured prominently in the district courts' dockets, and that "[t]he apparent tendency to press claims under the state and city anti-discrimination laws, either in lieu of or in addition to claims under federal statutes, create[d] a genuine need for resolution of the vicarious liability standards applicable to employers under those statutes" (id.). He therefore asked the circuit whether the Faragher-Ellerth defense applied to sexual harassment and retaliation claims under section 8-107. The Judge remarked that the circuit might "in turn ... see fit to certify this state law question to the New York Court of Appeals" (id. n 63), which the circuit subsequently did (see Zakrzewska v New School, 574 F3d at 28).

II.

We have "generally interpreted" state and local civil rights statutes "consistently with federal precedent" where the statutes "are substantively and textually similar to their federal counterparts" (McGrath v Toys "R" Us, Inc., 3 N.Y.3d 421, 429 [2004] [emphasis added]). And we have always strived to "resolve federal and state employment discrimination claims consistently" (Matter of Aurecchione v New York State Div. of Human Rights, 98 N.Y.2d 21, 25 [2002]). But we also "construe unambiguous language to give effect to its plain meaning" (Matter of DaimlerChrysler Corp. v Spitzer, 7 N.Y.3d 653, 660 [2006]).

Here, as the District Court correctly concluded, the plain language of the NYCHRL precludes the Faragher-Ellerth defense. In many ways, the NYCHRL parallels state law prohibiting discrimination by employers (compare Administrative Code of City of NY § 8-107 [1] [a], [b] and Executive Law § 296). Unlike state law, though, subdivision (13) of section 8-107 of the NYCHRL creates an interrelated set of provisions to govern an employer's liability for an employee's unlawful discriminatory conduct in the workplace. This legislative scheme simply does not match up with the Faragher-Ellerth defense.

First, the NYCHRL imposes liability on the employer in three instances: (1) where the offending employee "exercised managerial or supervisory responsibility" (the circumstance alleged in Zakrzewska's complaint); (2) where the employer knew of the offending employee's unlawful discriminatory conduct and acquiesced in it or failed to take "immediate and appropriate corrective action"; and (3) where the employer "should have known" of the offending employee's unlawful discriminatory conduct yet "failed to exercise reasonable diligence to prevent [it]" (see Administrative Code of City of NY § 8-107 [13] [b] [1]-[3], quoted at 477, supra). Regarding the first two instances, an employer's antidiscrimination policies and procedures may be considered "in mitigation of the amount of civil penalties or punitive damages" recoverable in a civil action (see Administrative Code of City of NY § 8-107 [13] [e]). As a result, even in cases where mitigation applies, compensatory damages, costs and reasonable attorneys' fees are still recoverable. Further, an employer's antidiscrimination policies and procedures—which are at the heart of the Faragher-Ellerth defense—shield against liability, rather than merely diminish otherwise potentially recoverable civil penalties and punitive damages, only where an employer should have known of a non-supervisory employee's unlawful discriminatory acts (id.).

The New York City Council adopted section 8-107 (13) in 1991 as part of a major overhaul of the NYCHRL. In a side-by-side comparison of then-current law with the proposed new law, the Report of the Council's Committee on General Welfare describes new section 8-107 (13) as providing for

Thus, section 8-107 (13)'s legislative history is consonant with its unambiguous language.

Next, NYCHRL § 8-107 (13) is not inconsistent with state laws, as the School contends. Article IX, § 2 (c) of the New York Constitution vests local governments with the power to enact only those laws that are not inconsistent with state law; specifically, "every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to its property, affairs or government," as well as labor, and the health and well-being of its residents. We have held that a local law is inconsistent "where local laws prohibit what would be permissible under State law, or impose prerequisite additional restrictions on rights under State law, so as to inhibit the operation of the State's general laws" (Consolidated Edison Co. of N.Y. v Town of Red Hook, 60 N.Y.2d 99, 108 [1983] [citations and internal quotation marks omitted]). A local law may, however, provide a greater penalty than state law (see Wholesale Laundry Bd. of Trade v City of New York, 17 A.D.2d 327, 329-330 [1962]). Under these definitions of inconsistency, section 8-107 (13) is consistent with Executive Law § 296, the state antidiscrimination statute. Both prohibit discrimination; NYCHRL § 8-107 merely creates a greater penalty for unlawful discrimination.

Further, the School's argument that section 8-107 (13) does not apply to all managers and supervisors is not supported by the statute's text. The School also contends that strict liability for discrimination impedes deterrence of workplace discrimination and so thwarts sound public policy. As the District Court pointed out, however, although "[t]he arguments for applying the Faragher-Ellerth test in state and local law cases are not trivial," ultimately such "considerations relevant to policy judgments [are] properly made by legislatures" (Zakrzewska, 598 F Supp 2d at 435). For the same reason, we may not apply cases under the State Human Rights Law imposing liability only where the employer encourages, condones or approves the unlawful discriminatory acts (see Matter of Totem Taxi v New York State Human Rights Appeal Bd., 65 N.Y.2d 300 [1985]; Matter of State Div. of Human Rights v St. Elizabeth's Hosp., 66 N.Y.2d 684 [1985]). By the plain language of NYCHRL § 8-107 (13) (b), these are not factors to be considered so long as the offending employee exercised managerial or supervisory control.

Finally, we note that our decision is not inconsistent with our holding in Forrest v Jewish Guild for the Blind (3 N.Y.3d 295 [2004]). There, we made the general statement in a footnote that "the human rights provisions of the New York City Administrative Code mirror the provisions of the [State Human Rights Law] and should therefore be analyzed according to the same standards" (id. at 305 n 3). The plaintiff in Forrest did not argue that NYCHRL § 8-107 (13) imposes strict liability for a supervisor's unlawful discriminatory acts, and so we had no occasion to consider the point. Since the plaintiff did not establish the elements of a hostile work environment under either state or local law, we did not even reach the question of whether the Faragher-Ellerth defense applies under the State Human Rights Law (id. at 312 n 10).

Accordingly, the certified question should be answered in the negative.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.27 of the Rules of Practice of the New York State Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered in the negative.