Employment-Second Circuit Rules That Faragher/Ellerth Defense Does Not Automatically Apply Even Though Plaintiff May, But Fails To, Complain To Some One Other Than A Harassing Supervisor

In Gorzynski v. JetBlue Airways Corp., No. 07-4618 (2nd Cir. 2010) , the plaintiff was appealing the dismissal, on summary judgment, of her employment discrimination action based on claims, among others, that she suffered a hostile work environment due to sexual harassment (the “Claim”). The plaintiff had complained to her supervisor, who was also her harasser, regarding the allegedly hostile work environment. One issue faced by the Court was whether, since the employer’s sexual harassment policy provided that the plaintiff could have complained to persons other than her supervisor, the employer is, as a matter of law, entitled to the Faragher/Ellerth affirmative defense. The Court ruled that the employer is not so entitled.

The Court said that when, as here, the alleged harasser is in a supervisory position over the plaintiff, the objectionable conduct giving rise to the Claim is automatically imputed to the employer. But, subject to proof by a preponderance of the evidence, the employer may raise the Faragher/Ellerth affirmative defense to liability or damages from the Claim . This defense will protect the employer if two elements are present: (1) the employer exercised reasonable care to prevent and promptly correct any discriminatory or harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. In this case, element (1) was satisfied, since the employer maintained a formal, written sexual harassment policy that was contained in an employee handbook.

As to element (2), the employer was required to demonstrate that the plaintiff unreasonably failed to take advantage of the policy described in the handbook, when the plaintiff complained only to the harassing manager-who failed to address her complaints-while the policy allowed the plaintiff to file a complaint with some one other than the harassing supervisor. Here, the Court ruled that there is no requirement that a plaintiff must exhaust all possible avenues made available, so that an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense merely because an employer’s sexual harassment policy offers such avenues. Rather, the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the policy, the plaintiff unreasonably failed to take advantage of the employer’s preventative measures, so that element (2) is met. According to the Court, this examination is for a jury, and the Court remanded the case back to the District Court for further proceedings.

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