Second Circuit: Employer May Not Defeat Harassment Claim By Arguing That Employee Did Not Take Advantage Of All Internal Complaint Options
Earlier this month, the Second Circuit Court of Appeals rejected an employer’s argument that the Faragher/Ellerth affirmative defense applied to shield it from liability where the employee complained to the alleged harasser but not to others identified in the company’s harassment policy. In Gorzynski v. JetBlue Airways Corporation, 07-4618, the Second Circuit held that it is not unreasonable, as a matter of law, for an employee to complain about sexual harassment to his or her harasser when that person is designated in the employer’s policy as one of several persons with whom a harassment complaint may be lodged. In each case, the court must look to the facts and circumstances of each case to determine whether the employee unreasonably failed to take advantage of other preventative measures provided in the employer’s sexual harassment policy.
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