The Faragher/Ellerth affirmative defense is familiar to most employment law practitioners. This defense, available to employers defending harassment/hostile work environment cases where no tangible employment action was taken against the plaintiff, comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Generally, employers have had success invoking Faragher/Ellerth and dismissing cases simply by showing that it had an adequate anti-harassment policy with procedures and mechanisms for resolving harassment complaints of which the plaintiff was aware and, notwithstanding, the plaintiff failed to fully utilize those avenues for relief set forth in the policy.

Recently, the Second Circuit in Gorzynski v. Jetblue Airways Corp., 596 F.3d 93 (2d Cir. 2010) addressed application of the Faragher/Ellerth defense where the supervisor/alleged harasser was the only person to whom the allegedly harassed employee complained. Jetblue argued that it was entitled to summary judgment under Faragher/Ellerth because its policies contained alternative avenues through which plaintiff could have effectively remedied the alleged harassment, namely, by complaining to Jetblue’s human resources or to other members of management other than her supervisor/ alleged harasser. Thus, Jetblue argued, Plaintiff’s election to complain only to her immediate supervisor, the very person who was allegedly harassing her, was an unreasonable failure to fully avail herself of the company’s anti-harassment policies.

Under the facts of Gorzynski, the Second Circuit found that issues of fact existed as to whether the alternative channels were “ineffective or even threatening”, and thus declined to rule as a matter of law that it was unreasonable for the plaintiff to complain only to the alleged harasser. Specifically, the Court found issues of fact as to whether another manager was receptive to receiving harassment complaints from employees, based on evidence that the manager previously admonished or intimidated employees who complained. Similarly, the Court found issues of fact as to whether Jetblue’s human resources department was a viable channel when there was evidence that one of plaintiff’s co-workers was suspended within days of making a complaint about the same alleged harasser. Under these unique facts, the Court determined that “several of the listed channels appeared to be ineffective or even threatening,” and thus held that “a fact question exists as to whether it was reasonable for Gorzynski to believe that any other avenues would be similarly futile.”

Under the Second Circuit’s analysis, whether a plaintiff’s election to not pursue other avenues provided in the employer’s sexual harassment policy is “unreasonable a matter of law” will likely depend on an examination of the facts and circumstances of each case. For example, eschewing alternate avenues and complaining only to the harasser may be unreasonable where the facts demonstrate “as a realistic and practical matter, there are other channels that are adequately indicated and are accessible and open” to plaintiff, and such avenues could have been effective at remedying the harassment. In this framework, however, an employer will still prevail on its Faragher/Ellerth defense as a matter of law where the plaintiff has failed to adequately set forth reasons why it was reasonable to refrain from complaining to those other than the harasser, who were listed as available as receiving complaints.

Bottom Line

Faragher/Ellerth remains a crucial litigation defense for employers. However, Gorzynski demonstrates the limits of that defense when the plaintiff is able to show that the company’s policies afforded her with complaint outlets that were ineffective or futile. While the holding in Gorzynski turned on specific facts in that case, the case presents a stark reminder that anti-harassment policies should ensure multiple, practical, and viable complaint channels and outlets of which employees may avail themselves without fear of intimidation or retaliation. In addition, managers occupying those important positions designated to receive and resolve such complaints should be trained on the company’s anti-harassment and equal opportunity standards, and the importance of being receptive and non-retaliatory.

**Note** The New York Court of Appeals, New York's highest state court, held on May 6, 2010 specifically that the Faragher/Ellerth defense is not available to defeat harassment claims under the New York City Human Rights Law. Instead, Faragher/Ellerth evidence is relevant to mitigation of civil penalties and punitive damages under that statute. See Zakrzewska v. The New School, 2010 NY Slip Op 03796 (May 6, 2010).