• Second Circuit: Reporting Harassment to Harasser Alone May be Enough
  • April 1, 2010 | Authors: Denise Smith Cline; Alexander L. Maultsby
  • Law Firms: Smith Moore Leatherwood LLP - Raleigh Office ; Smith Moore Leatherwood LLP - Greensboro Office
  • We hope your harassment policy allows employees a choice in where they can go within your organization to report harassment. And that those choices allow for reporting to someone other than a supervisor because sometimes supervisors are also harassers. But according to a recent Second Circuit Court of Appeals decision, a policy that permits reporting to one of a number of managers might not be enough to keep employers from having to try sexual harassment cases---especially if the policy allows an employee to complain about harassment to the very supervisor she’s accusing of harassment.

    We and most of our counterparts have long preached about the importance of having a sexual harassment policy that allows employees alternative routes for reporting harassment. That’s because a series of Supreme Court decisions 12 years ago made clear that in certain harassment cases, employers can raise an affirmative defense to claims of supervisor harassment if the employer 1) had reasonable preventive policies in place and 2) the employee unreasonably fails to take advantage of them. In the Faragher v. City of Boca Raton, the Court found the City didn’t have reasonable preventive policies in place because, in part, its sexual harassment policy required Faragher to report her alleged harassment to the very supervisor she accused of harassment.

    In Gorzynski v. JetBlue Airways Corp, Diane Gorzynski complained that her supervisor, James Celeste harassed her by talking about his wife’s “sex toy” party, making comments about women’s breasts, and announcing over a loudspeaker that Gorzynski and another female worker had previously been employed in sexually provocative jobs.

    Gorzynski complained several times to Celeste about what she believed to be harassing and discriminatory conduct. In July 2002, Gorzynski was fired and she sued JetBlue for harassment, age discrimination and retaliation.

    JetBlue’s sexual harassment policy provided that any employee who suffered harassment “should bring that conduct to the immediate attention of his or her supervisor, the [human resources department] or any member of management.” JetBlue contended that in limiting her reporting to Celeste, she unreasonably failed to take advantage of the JetBlue’s preventive policies. JetBlue argued that under Faragher, it was entitled to an affirmative defense.

    Not so, said the Second Circuit Court of Appeals. In fact, the Court said, it might be unreasonable to require an employee to report to other managerial employees. The court said, “There is no requirement that a plaintiff exhaust all possible avenues made available where circumstances warrant the belief that some or all of the avenues would be ineffective or antagonistic.” The court reversed a summary judgment ruling for JetBlue and sent the case back to the lower court for trial.

    In light of JetBlue, it might be wise to take another look at your policies. In particular it's worth considering whether to add language requiring employees to report harassment to someone other than or at least in addition to their alleged harasser.