Under the U.S. Supreme Court’s Farragher and Ellereth decisions, employers are entitled to raise an affirmative defense to an employee’s sexual harassment claim where the employee unreasonably failed to take advantage of remedial measures provided in the employer’s harassment policy. Last week, the Second Circuit Court of Appeals refused to automatically apply the defense where the plaintiff failed to use the harassment policy to complain to anyone other than the alleged harasser.

In Gorzynski v. JetBlue Airways Corp., the employer’s harassment policy, like most, allowed the employee to complain to her direct supervisor or to several listed alternatives. JetBlue contended that as a matter of law, the plaintiff’s failure to make anyone other than the alleged harasser aware of her claims entitled the employer to the Farragher/Ellereth defense.

The Second Circuit rejected this reasoning, concluding that a jury should determine whether the plaintiff’s complaint was reasonable in this particular circumstance. The court stated that in order to protect their rights, employees do not have to “go from manager to manager,” or exhaust all complaint options in the policy, especially where the employee believes that additional complaints would be futile or counterproductive.

While the jury may ultimately agree that the plaintiff’s failure to complain to another manager or to Human Resources was unreasonable, this case is problematic for employers. Under what circumstances could a reasonable person believe that by complaining to her alleged harasser, the employer would be able to address the situation?  Leaving this determination up to the whims of a jury places employers at the potential mercy of a plaintiff who simply refuses to take basic steps to stop harassing conduct at an early stage.