Employee's Failure To Follow Policy Doesn't Shore Up Employer's Affirmative Defense

(Published May 17, 2010)

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Smart employers know to designate multiple avenues for employee complaints in their sexual harassment policies. This is especially helpful for avoiding a situation in which the one person designated to field complaints is the harasser. It may seem counter-intuitive for an employee to file a harassment complaint only with her alleged harasser when there are other individuals named in the policy — and for her subsequent sexual harassment lawsuit to be sent to trial. Read on to find out how a recent appeals court ruling may make it more difficult for employers to successfully use an affirmative defense against sexual harassment charges.

Complaining To The Harasser Is Futile

A female employee at a major airline complained about sexual harassment to her supervisor, who was designated in the employee handbook as one of several individuals to whom employees could lodge complaints. The problem: The supervisor was her alleged harasser. The supervisor neither apologized nor faced any disciplinary action and then allegedly retaliated against her, so the employee filed a hostile environment claim.

The district court found that the airline was entitled to the Faragher/Ellerth affirmative defense and dismissed the case. Under the Faragher/Ellerth affirmative defense (established by the U.S. Supreme Court in 1998), an employer may avoid liability for harassment by a supervisor that does not involve a tangible employment action (e.g., termination, demotion, promotion) if the employer can demonstrate:

1. it exercised reasonable care to prevent and promptly correct any harassment in the workplace, and 
   
   
2. the employee unreasonably failed to take advantage of the employer's preventive or corrective measures or to avoid harm otherwise.

On appeal, the 2nd Circuit disagreed with the district court's ruling that the employee unreasonably failed to take advantage of all the preventive and corrective measures available to her because she complained only to the harasser and did not pursue any of the alternate complaint options. It remanded the case for further proceedings.

Appeals court: An employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because its sexual harassment policy provides that the employee could have complained to individuals other than the harasser. "We do not believe that the Supreme Court…intended that victims of sexual harassment…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." (Gorzynski v. JetBlue Airways Corp., 2nd Cir., No. 07-4618-cv, 2010)

When Complaining To Others Might Be Futile

All of the facts and circumstances must be examined to determine whether the employee acted unreasonably by not pursuing other avenues provided in the policy or whether there were reasons why she failed to complain to those listed in the policy other than her harasser.

The airline suggested that the employee should have complained to the other manager at the station or to its HR department. However, there was evidence that the other manager was not receptive to receiving complaints from employees. For instance, when the employee complained to him about disparate treatment based on age in the enforcement of the luggage inspection policies, the manager responded by admonishing her. Additionally, other staff members said that the manager was intimidating and that they would not have complained to him for fear of retaliation. There was also evidence that another employee was suspended within days of making a complaint about the harasser to the Vice President of HR. "Given that several of the listed channels appeared to be ineffective or even threatening, a fact issue exists as to whether it was reasonable for [the employee] to believe that any other avenues would be similarly futile."

The general fear of retaliation alone is not enough to justify an employee's failure to take advantage of the policy; the fear must be based on more than conjecture.

Related Topic(s): Discrimination/Sexual Harassment