Second Circuit Court of Appeals Reverses Dismissal of sexual Harassment Case-Gorzynski v. Jet Blue Sexual Harassment Case 2-2010
In holding that even though an employee did not use the employer’s complaint mechanism, the person who the complaint went to was the supervisor, the alleged harasser. The point is that the employee has to have an alternate method of making the complaint that does not involve the immediate supervisor. In reversing the summary judgment for the employer, the Second Circuit held:
“… 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. Instead, we conclude that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer’s sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer’s preventive measures. In some instances, it may be unreasonable for a victim of harassment to complain only to the harasser because, as a realistic and practical matter, there are other channels that are adequately indicated and are accessible and open. But, in other cases, there may be reasons why the plaintiff failed to complain to those other than the harasser, who are listed as available. And in such cases, a genuine issue of fact may be raised as to whether it was reasonable not to pursue other options.”