In sexual harassment cases, the U.S. Supreme Court (in what’s known as the Faragher/Ellerth cases) over a decade ago laid out the rules for when an employer could use an "affirmative defense" — in Monopoly terms, a "Get Out of Jail" free card.

This defense can be used by employers in hostile work environment cases. In order to win, an employer must show 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.’”

But what happens when the victim of alleged harassment just reports it to her supervisor — who happens to be the alleged harasser? Can the employer claim that the employee should’ve reported it to other people too?

The Second Circuit, in a decision (Gorzynski v. JetBlue Airways Corp.) released last Friday, concluded that the employer does not automatically get to use the affirmative defense saying that it will depend on a case-by-case basis whether it was unreasonable for the employee to have to complained to others.   The fact that a sexual harassment policy is written to allow for other is not a sure-fire defense; it depends on the facts and circumstances of the matter. 

The Wait a Second blog does a terrific job (as usual) outlining this case further. (Note: The allegations are fairly graphic as these types of cases go). It hits the nail on the head here by getting the key takeaway from the court’s decision:

We reject such a brittle reading of the Faragher/Ellerth defense. 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. 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.

What does this mean for employers in Connecticut (the Second Circuit, as a reminder, covers New York, Connecticut and Vermont)? 

From this case, it appears that having a well-drafted sexual harassment prevention policy is not enough to escape liability in every sexual harassment cases.  Rather, employers must make sure that the individuals who are designated as receiving such complaints are viewed as receptive to complaints and responsible enough to follow up.  Employers should take the time periodically to re-publicize the policy and ensure that front-line supervisors and human resources administrators know how to handle such complaints.   Additional training may be needed in some instances as well.