News

Diane Krebs and Bran Noonan Author Article in the New York Law Journal

June 2012

New York attorneys Diane Krebs and Bran C. Noonan co-authored an article, “Participation, Proxy and Payment: The Three Lessons of ‘Townsend.’” published in the New York Law Journal on June 14.

In the article, Ms. Krebs and Mr. Noonan analyze the recent decision of Townsend v. Benjamin Enterprises and discuss the impact it has on both employers and employees facing off in retaliation and hostile work environment claims brought under Title VII.

In Townsend, the court adopted the position that employees who participate in an internal investigation of discrimination unconnected to a pending EEOC charge are not protected from retaliatory action under the “participation” clause of Title VII's anti-retaliation provision. The court also held that the Faragher/Ellerth affirmative defense may not be used when the alleged harasser is a supervisor who is considered a proxy or alter ego of the company. Both holdings are consistent with circuit courts nationwide and, therefore, will likely not see any significant challenges, unless the Legislature intervenes.

Additionally, along with its substantive pronouncements, the Second Circuit addressed an issue pertaining to “offers of judgment” under Federal Rule of Civil Procedure 68 (Rule 68 offer). Rule 68 offers are a significant strategic tool for the defense, as they eliminate the accrual of a plaintiff's attorney's fees and require a plaintiff to pay all subsequent costs if the ultimate judgment does not exceed the unaccepted offer. In determining whether the ultimate award, including attorney fees, is less than the Rule 68 offer, the Second Circuit affirmed the lower court's decision to calculate plaintiff’s attorney’s fees using a “reasonable” market rate instead of her attorney's lower rate in his retainer agreement.

To view the full article, please click here.