Online Exclusive: Sex Harassment Decision Describes an “Animal House” Atmosphere

JetBlue Airways hired 54-year-old Diane Gorzynski as a customer service agent in January 2000. About two years later, the company hired James Celeste as her supervisor at the Buffalo International Airport. Celeste allegedly subjected Gorzynski to repeated and multiple forms of sexual harassment and age discrimination until she was fired in July 2002.

Gorzynski alleges that Celeste announced to a full plane that she used to be a table dancer, and that he grabbed her and other female employees around the waist and tried to tickle them.

Celeste also allegedly favored younger employees. One young employee slept through an airplane’s arrival without repercussions, while Gorzynski got in trouble for trying to wake her. Two others were not required to learn new mandatory bag-searching procedures following the Sept. 11 attacks, while Gorzynski was.

Gorzynski sued JetBlue for age and gender discrimination as well as retaliation for complaining about the discrimination against herself and racial discrimination against other employees. A district judge granted summary judgment to the employer because Gorzynski only complained to Celeste–her supervisor and also her harasser. Official JetBlue policy made him Gorzynski’s go-to person for harassment complaints, although it did provide alternative avenues for such complaints. On Feb. 19, the 2nd Circuit remanded Gorzynski v. JetBlue to the lower court in a 31-page decision.

“We do not believe that the Supreme Court … 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,” Senior Judge Guido Calabresi wrote.

Now a jury will decide if Gorzynski’s complaints to Celeste were enough to create liability for JetBlue.

The case highlights the need for companies to provide easily accessible ways for employees to complain without putting them at odds with co-workers or supervisors.

“A properly counseled, properly drafted anti-harassment policy would make sure [employees know] reporting to the person who is harassing you is probably not reasonable,” says Paul Mollica, a partner at Meites, Mulder, Mollica & Glink. “In those circumstances, there’s got to be another option. It’s got to be something reasonable.”

Reasonable Effort

JetBlue unsuccessfully tried to defend itself by arguing that because Gorzynski only complained to Celeste, rather than pursuing other options for complaints outlined in the employee handbook, she didn’t make a reasonable effort to alert the company to the harassment. That argument was based on the 1998 rulings in Burlington Indus., Inc. v. Ellerth and Faragher v. City of Boca Raton, in which the Supreme Court created a two-part defense against sexual harassment claims.

The high court said an employer first must show that it exercised reasonable care to prevent and quickly correct any discriminatory or harassing behavior. Second, an employer may not be liable if the plaintiff unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer. In other words, the plaintiff has to make a reasonable effort to tell someone with power what is happening.

“Employers say, ‘We didn’t know. We can’t fix what we don’t know,’” says Daniel Schwartz, a member of Pullman & Comley and publisher of the Connecticut Employment Law Blog. “[Before Faragher,] if there were sexual harassment cases, employers could be stuck even if they didn’t know about it. But the Supreme Court gave employers a bit of a way out.”

In Gorzynski, the question of what defined a reasonable effort had no easy answer. In addition to confronting Celeste, the plaintiff said she tried to raise concerns about the bag-search training discrepancies with the regional manager, who admonished her. Moreover, Gorzynski’s co-worker, another middle-aged female, was suspended within days of complaining about Celeste to JetBlue’s vice president of human relations.

“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,” the court wrote.

Although JetBlue had a policy for dealing with harassment, questions about its enforcement and practicality led the 2nd Circuit to send the case to a jury.

“The employer thought, ‘We have a policy. That’s enough,’” Schwartz says. “And the court said, ‘Well, we can’t say that definitively.’”

Retaliation Reviews

To protect themselves against harassment liability, companies need to offer ways to complain outside of the immediate power ladder, says Philip Schatz, a partner at Wrobel and Schatz.

“The main problem JetBlue had was that its avenues of complaint were not really out of the management chain,” he says. “You had a small branch that was somewhat isolated, and everybody was interrelated.”

Human resources often takes on this role and should have autonomy to investigate claims without interference from other parts of the company, he says. Creating a hotline is another way to let employees safely report harassment.

Additionally, Schatz says corporations need policies restricting adverse employment actions against employees who have recently complained. Courts may assume retaliation unless the company conducted a thorough, objective review by someone uninvolved in the relevant area of the business.

“Make sure everything is documented and [conduct] a review by somebody who doesn’t have a dog in the fight,” he says.

Finally, companies must enforce rules across the board. In Gorzynski, supervisors applied rules differently for favored employees.

“The fact that younger employees were not disciplined for violating numerous policies was considered prima facie evidence of discrimination,” Schatz says. “There were a lot of unfortunate mistakes made here.