Ruling on Application of Faragher/Ellerth Defense - U.S. Second Circuit
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Ruling on Application of Faragher/Ellerth Defense

In another appeal decided today, the circuit court handled an employment discrimination case.

Gorzynski v. JetBlue Airways Corp., No. 07-4618, involved claims that plaintiff suffered a hostile work environment, age discrimination, and retaliation for complaints of race and age discrimination.  The district court granted summary judgment to defendant.

However, in a ruling clarifying the application of the Faragher/Ellerth affirmative defense, the circuit court held:

"...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 preventative 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."


As a result, the court of appeals vacated the judgment on the ground that defendant was not entitled to the Faragher/Ellerth affirmative defense as a matter of law, and it was necessary to look to the facts and circumstances to determine whether, by not pursuing other avenues seemingly provided in defendant's sexual harassment policy, plaintiff unreasonably failed to take advantage of the employer's preventative measures.

The matter was remanded for further proceedings as plaintiff presented genuine issues of material fact with respect to her hostile work environment, age, and retaliation claims.

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