On February 19, 2010, the Second Circuit Court of Appeals vacated a district court decision and reversed JetBlue Airways’ favorable summary judgment in a case brought by a former customer service supervisor who complained to her supervisor, who was also the alleged harasser, about a hostile work environment because other avenues of complaint may have appeared to be futile.

The employee alleged that over a seven-month period her supervisor made several remarks about wanting to massage or suck on a woman’s breasts, remarked about going home so that his wife could attend a “sex toy” party and asked a female coworker whether she had “gotten enough loving” over the weekend. Other employees testified that the supervisor grabbed female crewmembers, that he frequently made inappropriate comments and gestures, and that he stared at them as if he was mentally undressing them.

The employee also complained that while she and another crew member were on an aircraft full of passengers, her supervisor gave the final boarding call and remarked over the loudspeaker that one of the crew was a former pin-up girl and that the plaintiff-employee had been a table dancer before joining the airline. Both employees were humiliated and walked off the plane. The plaintiff-employee claimed to the supervisor about these comments. He did not apologize and the airline took no disciplinary action against him. The Court found this evidence sufficient to create an genuine issue of fact as to whether the employee faced a hostile work environment.

Of course, an employee’s objectionable conduct is imputed to the employer where, as here, the alleged harasser is in a supervisory position. But a defending employer may avoid liability by raising the Faragher/Ellereth affirmative defense which requires it to show that it “exercised reasonable care to prevent and correct promptly any discriminatory harassing behavior”; and “the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.”

JetBlue argued that it was entitled to the Faragher/Ellereth affirmative defense because the employee failed to pursue alternative options listed in the policy for reporting alleged harassment. Even though JetBlue’s sexual harassment policy gave the employee options for reporting harassment to persons other than her supervisor, the Court held that JetBlue was not entitled to the Faragher/Ellereth affirmative defense as a matter of law.

The Court explained that it must determine whether it was unreasonable as a matter of law for an employee to complain about harassment only to her harasser, if that person is designated in the employer’s plan as one of several with whom an employee may lodge a complaint. The Court concluded that whether the employee’s complaint to her harasser was a reasonable availment of JetBlue’s harassment policy must be determined by the facts and circumstances of each case.

JetBlue argued that the employee did not reasonably avail herself of its sexual harassment policy because she complained only to her harasser and not to other members of management and the human resource department, which were also referenced in the policy. The Court “rejected such a brittle reading of the Faragher/Ellereth defense,” stating that it did not believe that “the Supreme Court, when it fashioned this affirmative defense, 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.”

Significantly, the Court observed that 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.” The Court then held that an employer is not entitled to the affirmative defense as a matter of law simply because its policy has multiple avenues for complaint and the plaintiff-employee could have complained to other persons in addition to the alleged harasser and that it would look at the facts and circumstances of each case.

In this case, the employee and other employees had complained to the supervisor’s boss about other issues and his responses to those complaints showed that he was not receptive to receiving complaints. And when another employee complained to JetBlue’s human resource department about the same supervisor, she was suspended within days of that complaint. Given that several of the alternative channels for making complaints appeared to be ineffective or even threatening, the Court found an issue of fact to be resolved by a jury regarding whether it was reasonable for the employee to believe that other avenues for complaining would be futile.

This case emphasizes the importance of providing multiple avenue of complaints and of encouraging employees to take their complaint further if they do not believe it is being heard. It also teaches that employers must train managers and supervisors to be receptive to employee complaints and serves as a caution to employers that, when supervisors and managers appear to retaliate against an employee who complains, the employer may lose the opportunity for summary judgment based on the Faragher/Ellereth defense.

Diane Gorzynski v. JetBlue Airways Corporation, United States Court of Appeals Case No. 07-4618-cv (2d Cir. Feb. 19, 2010)