An employer is not entitled to the Faragher/Ellerth affirmative defense if the complaint is made to a supervisor who was also the alleged harasser, even though the company’s sexual harassment policy provides that the victim could have complained to others besides the supervisor, the Second Circuit rules.

According to the Court, the Faragher/Ellerth defense consists of two elements: that (1) “the employer exercised reasonable care to prevent and correct promptly any [discriminatory] 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.” The Court says it will “look to the facts and circumstances of each case to determine whether, by not pursuing other avenues seemingly provided in the employer’s sexual harassment policy, a plaintiff unreasonably failed to take advantage of the employer’s preventative measures.”

In the instant case, the Court says the plaintiff presented evidence of a hostile work environment: there were numerous sexual comments made by the supervisor, and on multiple occasions the supervisor grabbed the complainant and other women “around the waist, tickled them, and stared as if he were mentally undressing them.” The company maintained a formal, written sexual harassment policy in the employee handbook which stated that any employee who believed they were the victim of discrimination or harassment “should bring that conduct to the immediate attention of his or her supervisor, the People Department or any member of management.” The Court says a prompt investigation process was described by the policy, which also prohibited retaliation against the complainant. The plaintiff had complained to the supervisor about his conduct, but “he neither apologized nor faced any disciplinary action,” and then she was subsequently terminated due to her “unsatisfactory interpersonal skills.”

The company said that she did not reasonably avail herself of its sexual harassment policy because she complained only to her harasser, and did not take advantage of the alternate avenues that the company provided, such as complaining to other managers or the People Department.

“We reject such a brittle reading of the Faragher/Ellerth defense,” the Court says. “We do not believe that the Supreme Court, when it fashioned this affirmative defense, intended that victims of sexual harassment, in order to preserve their rights, must go from manager to manager until they find someone who will address their complaints. There 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. Considering the courage it takes to complain about what are often humiliating events and the understandable fear of retaliation that exists in many sexual harassment situations, we decline to read the rule so rigidly. Accordingly, we hold that an employer is not, as a matter 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.” Gorzynski v. JetBlue Airways Corp.