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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 this case, the Court noted that:

• the other manager Gorzynski could have complained to was Thro -- the regional manager

• the evidence showed that Thro was not receptive to receiving complaints from employees

• the evidence also showed that Thro was intimidating

• Thro retaliated against those who made complaints

Therefore, the Second Circuit held -- in reinstating the sexual harassment claim --  the question of whether or not Gorzynski unreasonably failed to take advantage of the options provided in the sexual harassment policy was a jury question.

Remaining Issues Of Fact For The Jury

Age Discrimination

Gorzyski established a prima facie case of age discrimination: 

• she was over 40
  

• she was qualified for her position
  

• she was fired
  

• she was replaced by a woman in her 40’s

JetBlue countered this inference of age discrimination with its "legitimate business reason": it fired Gorzynski because of her “management style,” “unprofessional conduct and poor interpersonal skills” and the “hostile work environment she created.”

The District Court found that Gorzynski did not present any evidence that JetBlue’s reasons were false or pretextual – and threw out her age discrimination claim.

The Second Circuit disagreed. Some of the evidence it noted was:

• the negative evaluation Gorzynski received from Celeste -- a 2 out of 5 -- was conducted after he had supervised her for only one week
  

• a contemporary, anonymous crewmember gave her a 4 out of 5
  

• at the same time Celeste gave Crowly, a 30 year old customer service rep. a 4 out of 5 even though Crowly had been written up and counseled on numerous occasions --Celeste then promoted him
  

• JetBlue’s investigation regarding an incident which immediately preceded Gorzynski’s discharge was “questionable at best”
  

• Celeste told Gorzynski she reminded him of his 80 year old aunt
  

• younger employees were not disciplined for violating numerous policies including smoking and sleeping on the job

The Court stated:

Given the cumulative weight of this evidence, we believe that a reasonable jury could find not only that the explanations given by JetBlue for Gorzynski’s termination were pretextual, but also that, together with Celeste’s passing comment about his aunt, it was her age that was the ‘but for’ cause of Gorzynski’s termination.

Accordingly, we vacate the District Court’s dismissal of Gorzynski’s age discrimination claims.

(the case also has a very interesting discussion of "age plus" discrimination in connection with her claim that Celeste discriminated against older women)

Retaliation

The District Court also dismissed Gorzynski’s claim that she was discharged in retaliation for complaining about race, gender and age discrimination.

In order to establish a retaliation claim, the plaintiff must show

1. that she participated in a protected activity
2. suffered an adverse employment action
3. a causal connection between her engaging in the protected activity and the adverse employment action

The Second Circuit reversed the District Court’s holding on the retaliation claims noting in part:

• five months – the time between Gorzynski expressed concern about a co-workers race discrimination and her discharge – was “not too long to find a causal relationship.”
  

• a complaint about a sexual harassment incident two months before her discharge sufficiently alleged a causal connection between her protected complaint about sex discrimination and her termination
  

• Gorzynski’s statements in her affidavit that there was unequal enforcement of the rules at the Buffalo station with respect to older employees versus younger employees should have been considered by the Court

In sum, the Court said

JetBlue has articulated a legitimate nondiscriminatory reason for Gorzynski’s termination, and Gorzynski has produced evidence that casts significant doubt on that rationale, leaving a triable issue as to whether JetBlue retaliated against her for complaining about prohibited discrimination.

Lessons To Be Learned

The decision is filled with points of law that are very helpful to employees who have filed employment discrimination claims. It gives numerous examples of what may be considered evidence of disparate treatment, pretext, and retaliation.

It also has a very interesting discussion of   gender/age "plus" discrimination, where a subset of women are being discriminated against in the workplace, ie., older women, or black women, but not all women -- which in reality is quite common.

Most noteworthy is the discussion of the Faragher/Ellerth defense. While it is critical for those who have been sexually harassed to complain to someone in management,  the opinion makes it clear that victims of sexual harassment will not lose their rights because they did not complain to each person designated in a company's sexual harassment policy.

Complaints to the supervisor/harasser are sufficient. That particular point of law will be a huge help to many victims.

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Recognized as one of the first and foremost employment and civil rights attorneys in the United States, Ellen Simon has been lauded for her work on landmark cases that established employment law in both state and federal court. A sought-after legal analyst and expert, she discusses high-profile civil cases, employment discrimination and woman's issues. Her blog, Employee Rights Post www.employeerightspost.com/  has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at www.ellensimon.net/.

The Lower Court’s Opinion

Duch filed a sexual harassment lawsuit pursuant to Title VII of the Civil Rights Act of 1964 and the statutory laws of the state of New York and New York City.

The Defendants requested that Duch’s claims be dismissed as a matter of law and the federal District Court agreed holding that:

• OCA provided a reasonable avenue of complaint
  

• no reasonable fact-finder could conclude that the employer-defendants had actual or contsrtructive knowledge of the alleged harassment
  

• even assuming the employer defendants did know or should have known about the harassment, their response was reasonable

Duch filed an appeal to the Second Circuit Court of Appeals.

Sexual Harassment Law

The law of sexual harassment is a bit complicated.

In short, in order to prove a hostile environment sexual harassment claim Duch was required to establish that:

• the harassment was sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment and

• there was a specific basis for imputing the conduct creating the hostile work environment to the employer

Proving the harassment was not the problem -- Duch could provide that proof with her testimony.

The thorny issue in this case turned on whether Duch could impute the conduct that created the hostile work environment to her employer – and that depended on who did the harassing and who knew about it.

When the harassment of an employee is done by an officer, owner, or manager the company will in most circumstances be automatically liable for the illegal conduct.

When the harassment is that of a co-worker, the employer is not automatically liable. In a co-worker harassment case like this one, Duch was required to have proof that her employer:

• knew about the harassment or

• in the exercise of reasonable care should have known about the harassment  and

• failed to act promptly to stop it

The District Court found that Duch failed to properly report Kohn’s harassment and as a result her employer was not liable.  Duch appealed.

The Court of Appeals Decision

The Second Circuit Court of Appeals reversed and in its opinion gave us some helpful guidance on what does and does not constitute sufficient reporting by a victim of harassment for purposes of imposing employer liability.

Conversations With Christiano

Because Christiano was a co-worker without supervisory authority, her knowledge could only be imputed to her employer if:

• she had an official duty to act, and whether in light of her knowledge

• her response was unreasonable

There was no dispute that Christiano knew about Kohn’s harassment.  Duch however told Christiano “absolutely not “  to tell Jukabek about it.  

The Court found that Christiano acted reasonably in honoring Jukabek’s request. In so doing, the Court acknowledged:

[T]here is certainly a point at which harassment becomes so severe that a reasonable employee simply cannot stand by, even if requested to do so by a terrified employee.

In this case, however, the Court sided with the defense. It did so because it concluded that:

• there was no evidence that Christiano was aware of the psychological toll that Kohn’s harassment was allegedly inflicting on Duch

• therefore the jury could not conclude that Christiano breached a duty to Duch and

• the defendant employer could not be liable because of Christiano’s inaction

Conversations With Jakubek

The evidence involving Jukabek caused the Court to reach a different conclusion than it  did with Christiano and reversed the district court.

That’s because Jukabek was Kohn’s supervisor, and as such, “was charged with a duty to act on the knowledge and stop the harassment.”

As the Court stated:

Where the person who gained notice of the harassment was the supervisor of the harasser (e.g. had the authority to hire, fire, discipline, or transfer him, knowledge will be imputed to the employer on the ground that the employer vested in the supervisor.

The Court held that there was sufficient evidence from which the jury could find that Jakubek knew, or should have known about the harassment including proof that Jakubek:

• knew that Duch asked for a change in her work schedule when she was scheduled to work alone with Kohn

•  asked Kohn about it, and Kohn admitted that he did or said something “he should not have”

•  knew that Kohn had engaged in sex-related misconduct toward females in the past

•  told Kohn, in reference to his conduct towards Duch, to “cut it out and grow up”

•  knew that the subject of working with Kohn caused Duch to become emotional , teary and red, and lose her composure

•  said “good”, when Duch said she didn’t want to talk about it, because “I don’t want to know what happened"

•  agreed to change Duch’s schedule so that she didn’t have to work with Kohn alone

Based on the above, according to the Court, Jakubek had a duty to make at least a minimal effort to discover whether Kohn had engaged in sexual harassment, and encourage (rather than discourage) her to reveal the full extent and nature of the harassment.

The Court wrote:

In so holding, we do not announce a new rule of liability for employers who receive nonspecific complaints of harassment from employees.

We merely recognize that, under the existing law of this Circuit, when an employee’s complaint raises the specter of sexual harassment, a supervisor’s purposeful ignorance of the nature of the problem – as Jakubek is alleged to have displayed —will not shield an employer from liability under Title VII.

Accordingly, notwithstanding the District Court’s observation that Jakubek ‘was never told of, and did not witness, the alleged harassment,’ we hold that a reasonable jury could conclude that Jakubek knew, or in the exercise of reasonable care should have known about the harassment.

The Adequacy Of The Response

According to the District Court, even if the employer knew about the harassment, the  response was reasonable. The Court of Appeals disagreed:

Although Jakubek did adjust the schedule so that Duch and Kohn would not be working together without other court officers on duty, Kohn’s harassment persisted and escalated during the months that followed.

A formal investigation of Kohn was not commenced until January 2002, after Duch informed another co-worker of the harassment and three months after the date upon which a jury could find that Jakubek first learned of the harassment.

Under these circumstances, we cannot say as a matter of law, that defendants’ response was ‘effectively remedial and prompt.'

Lessons To Be Learned

It’s very common for victims of harassment to be fearful of reporting the harassment. It’s also common for an employee to confide in a co-employee, or supervisor, without making a formal complaint and to say,  “don’t tell anyone.”

What we learn in this case is that those  informal and non-specific conversations can trigger an employer's obligation  to investigate and take appropriate action to stop the harassment.

We also learn that those conversations may not satisfy an employee’s obligation to report harassment  --- and that of this very much depends on what level of authority the person has who hears what the victim has to say and how much the victim reveals.

This case provides lots of valuable legal analysis in some gray area of sexual harassment law which have been infrequently addressed in the past.

In my opinion, it's an important and useful decision for all employers, victims of harassment, and all practitioners of employment law.

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