Earlier this month, the Second Circuit Court of Appeals rejected an employer’s argument that the Faragher/Ellerth affirmative defense applied to shield it from liability where the employee complained to the alleged harasser but not to others identified in the company’s harassment policy. In Gorzynski v. JetBlue Airways Corporation, 07-4618, the Second Circuit held that it is not unreasonable, as a matter of law, for an employee to complain about sexual harassment to his or her harasser when that person is designated in the employer’s policy as one of several persons with whom a harassment complaint may be lodged. In each case, the court must look to the facts and circumstances of each case to determine whether the employee unreasonably failed to take advantage of other preventative measures provided in the employer’s sexual harassment policy.

The Facts

JetBlue hired Diane Gorzynski as a customer service agent for its operations at the Buffalo International Airport. According to Gorzynski, her supervisor, James Celeste, made numerous inappropriate sexual comments, grabbed her and other women around the waste on multiple occasions, tickled them, and stared at them as if he were mentally undressing them. In accordance with JetBlue’s harassment policy, which provided that any employee who believed that she was the victim of sexual harassment “should bring that conduct to the immediate attention of his or her supervisor, the [Human Resources] Department or any member of management,” Gorzynski complained to Celeste about his conduct. She did not complain to Human Resources or any other manager. Celeste did not apologize for his actions and no disciplinary action was taken against him. Subsequently, JetBlue terminated Gorzynski’s employment because she had allegedly created a hostile work environment.

The District Court

Following her termination, Gorzynski filed suit in the United States District Court for the Western District of New York, alleging, among other things, that JetBlue had subjected her to a hostile work environment sexual harassment in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). JetBlue moved for summary judgment motion on the hostile environment claim, arguing that the Faragher/Ellerth affirmative defense shielded it from liability because Gorzynski had only complained of sexual harassment to her supervisor, rather than pursuing alternative options listed in the harassment policy. The court accepted the argument and granted JetBlue’s motion for summary judgment without even determining if the alleged conduct created a hostile work environment. Gorzysnki appealed to the Second Circuit Court of Appeals.

The Second Circuit

Unlike the District Court, the Second Circuit initially addressed whether Gorzynski had presented sufficient evidence to create a genuine issue of material fact as to whether she had experienced a hostile work environment. The Second Circuit concluded that she had, and then moved on to the application of the Faragher/Ellerth affirmative defense.

An employer can avoid liability on a Title VII hostile environment claim in certain circumstances by raising the Faragher/Ellerth affirmative defense, which consists of two elements: (1) “the employer exercised reasonable care to prevent and correct promptly any [discriminatory] harassing behavior,” and (2) “the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

No issue existed as to JetBlue’s satisfying the first prong, as it maintained a formal, written sexual harassment policy. Gorzynski acknowledged receiving the policy when she was hired, and she did not argue that JetBlue’s policy was insufficient with respect to the first element of the Faragher/Ellerth defense.

The Second Circuit’s decision turned on the second prong – which required JetBlue to demonstrate that Gorzynski had unreasonably failed to take advantage of the harassment policy. While conceding that Gorzynski had complained to Celeste, JetBlue argued that Gorzynski did not reasonably avail herself of its sexual harassment policy because she only complained to Celeste. According to JetBlue, it was unreasonable for Gorzynski not to take advantage of the alternate avenues that it had provided for employees to make internal complaints of sexual harassment, such as complaining to other members of management or the Human Resources Department.

The Second Circuit rejected “such a brittle reading of the Faragher/Ellerth defense” and stated that the Supreme Court did not intend “victims of sexual harassment, in order to preserve their rights, [to] go from manager to manager until they find someone who will address their complaints.” According to the Second Circuit, “[t]here is no requirement that a plaintiff exhaust all possible avenues made available where circumstances warrant the belief that some or all of those avenues would be ineffective or antagonistic.” As a result, the Second Circuit held “that an employer is not, as a mater of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer’s sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser.”

Rather, the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer’s preventative measures. In this case, the Court held that genuine issues of fact existed, as evidence had been presented that another manager was not receptive to receiving complaints from employees and that the other manager’s behavior led employees to believe that they could be subjected to retaliation if they complained. Additionally, evidence had been presented that another employee who had complained to the Human Resources Department had been suspended within days of making her complaint.

Conclusion

The Second Circuit’s decision in Gorzynski makes clear that for an employer to prevail on the Faragher/Ellerth affirmative defense at the summary judgment stage, there can be no genuine issue of material fact. Perhaps more importantly, the case underscores the importance of not only having a well-drafted harassment policy, but also ensuring that it is followed in practice. If an employee can present evidence that the policy is ineffective or that it would be futile to complain to those identified in the policy, then the Faragher/Ellerth affirmative defense will not succeed.