New York Federal Appellate Court Rules that Employee Claiming Sexual Harassment May not be Required to Complain to Multiple Managers about Harassment

The plaintiff, Diane Gorzynski, brought forth claims alleging hostile work enviornment, age and sex discrimination, as well as retaliation for complaints of race and age discrimination, against JetBlue, her employer. Gorzynski v. JetBlue Airways, Corp. (February 19, 2010).


Gorzynski, a 54-year-old woman, worked as a customer service agent for JetBlue’s Buffalo, New York station. She alleged that her supervisor made multiple sexually inappropriate comments and statements, frequently grabbed her and other women around the waist, or attempted to tickle female employees, over a 7 month period. She also alleged she received disparate treatment due to her age. She was given a negative performance review by her supervisor, who at the time had only supervised her for two weeks. Younger male and female employees, who had performance and/or disciplinary issues, were given good performance evaluations and even promoted.
Gorzynski complained to her supervisor, and another manager, about the gender and age discrimination, and she was subsequently put on 60 days probation. During this time, Gorzynski also witnessed her supervisor exhibit behavior, and make comments, that were racially offensive.
Gorzynski, and several co-workers, made complaints of race discrimination. Approximately one month after she complained about race discrimination, and four months after she alleged age and gender discrimination, Gorzynski was terminated and replaced by a 22-year-old co-worker with a history of disciplinary problems.
Typically, when the harasser is a supervisor, the harassing conduct is automatically imputed to the employer. The employer, however, is entitled to raise the Faragher/Ellerth affirmative defense. The Faragher/Ellerth affirmative defense consists of two elements. The first, is that “employer exercised reasonable care to prevent and correct promptly any harassing behavior.” The second is that the plaintiff “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.”
Jet Blue moved for summary judgment dismissing the case on the ground that Gorzynski had taken advantage of Jet Blue’s internal harassment complaint procedures. The lower court agreed with Jet Blue and dismissed the case, finding that that Gorzynski should have complained to other members of management or to its human resources department.
The United States Court of Appeals for the Second Circuit, which covers New York, Vermont and Connecticut, reversed the lower court’s decision. The Second Circuit found that Jet Blue was not entitled to the Faragher/Ellerth affirmative defense. The Court found that the Gorzynski was not required to go from “manager to manager” until she found someone to address her complaints. A harassed employee is not required to exhaust every avenue available to her, especially when doing so would be “ineffective or antagonistic.” There may be instances where it would be unreasonable for an employee to only complain to the harasser, but Gorzynski’s actions, under these circumstances, were not unreasonable. The Second Circuit further held that a determination of what is “unreasonable” should be made on a case by case basis and upon the facts and circumstances particular to that case.
The Second Circuit’s decision relates to sexual harassment violations under federal law– Title VII of the Civil Rights Act of 1964. The standard of liability is quite different under the New York City Human Rights Law, which automaticaly imposes liability on the employer if the harassment is perpetuated by a supervisor or manager. Even where the employer has a sexual harassment complaint policy, under New York City law an employer will not be completely released from liability. At best, under the New York City law such a policy can be considered by a jury in determining the amount of damages the employee would be entitled to receive. Consequently, employees working in New York City have substantially more protection against sexual and other types of harassment, than employees working throughout New York State.

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