A JetBlue employee whose harassment case was thrown out in 2007 won an appeal last week that will revive her claim. A judge had thrown out the case, in which Diane Gorzynski provided evidence of gender, racial, and age discrimination from her supervisor and complained about it to the same supervisor she accused.
The company argued she could have complained to more people within the company, according to its policy, before taking the case to court. But the Second Circuit Court of Appeals ruled that just because the policy allowed for her to pursue other avenues doesn't mean she was obligated to. From the Connecticut Employment Law Blog:
From this case, it appears that having a well-drafted sexual harassment prevention policy is not enough to escape liability in every sexual harassment cases. Rather, employers must make sure that the individuals who are designated as receiving such complaints are viewed as receptive to complaints and responsible enough to follow up. Employers should take the time periodically to re-publicize the policy and ensure that front-line supervisors and human resources administrators know how to handle such complaints. Additional training may be needed in some instances as well.
This is a win for employees who claim discrimination in the state's covered by the Second Circuit -- Connecticut, New York, and Vermont -- who don't necessarily have to prove they took advantage of every complaint opportunity outlined in company manuals, no matter how complicated the complaint structure or unsympathetic the manager. That idea was outlined in the decision:
We do 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. 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. 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.
-- Monica Potts
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