Court of Appeals rejects Faragher defense in sexual harassment case

There is more to sexual harassment than a hostile work environment. An HWE will get you halfway, but you also have to show the employer is liable for the harassment. If a supervisor commits the harassment, the company is responsible under Title VII. But the employer has an affirmative defense under Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Faragher outlined a new set of rules governing employer liability, and the courts are still parsing it all out. The Second Circuit last week parsed it out in a way that favors the plaintiff.

The case is Gorzynski v. JetBlue Airways, decided on February 19. The harassment in this case is typical. As the Second Circuit summarizes the environment,

Gorzynski’s hostile work environment claim is based in part on multiple comments made by her supervisor Celeste, which Gorzynski contends constitute sexual harassment. For example, after assisting a crewmember in cleaning up a spill of a passenger’s breast enhancement cream, Celeste made massaging gestures with his hands and stated that he had the impulse to massage breasts. On another occasion, after observing a female passenger with large breasts, Celeste and another crewmember made a comment about wanting to suck on the woman’s breasts. Celeste was also overheard telling a crewmember that he had to get home to watch his children so his wife could go to a “sex toy” party, and asked a female crewmember if she had “gotten enough loving” over the weekend.

There's more, but you get the picture. Gorzynski makes out a hostile work environment involving continuous and concerted sexist comments and gestures over the course of seven months. In order to win her case, however, she has to knock out the defendant's Faragher defense, which "consists of 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.'” We also call this the Faragher/Ellerth defense.

Faragher defenses sometimes succeed on the second point: that the victim did not take advantage of management's sexual harassment procedure, either by waiting too long to complain or not complaining at all. Since most company policies outline an elaborate procedure for reporting harassment, case are sometimes dismissed on a motion for summary judgment because the plaintiff did not follow the in-house rules.

Gorzynski complained about the harassment to Celeste, her supervisor. He happened to be the one who actually committed the harassment. Celeste neither apologized nor faced any disciplinary action. JetBlue argued that, consistent with company policy, Gorzynski could have complained to other supervisors, i.e., the "People Department." I have seen cases dismissed on the strength of this argument, that the victim could have gone to other supervisors or members of management if the first line of complaint failed. But the Court of Appeals has apparently never resolved this precise issue, until now. The Second Circuit (Calabresi, Walker and Wesley) states:

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.

In this case, the new legal standard means that summary judgment is reversed and a jury must decide if JetBlue makes out its Faragher/Ellerth defense. While plaintiff could have complained to another manager, Thro, he was not receptive to employee complaints. Other avenues of complaint may not have been fruitful, either. "Given that several of the listed channels appeared to be ineffective or even threatening, a fact question exists as to whether it was reasonable for Gorzynski to believe that any other avenues would be similarly futile."