Court Refuses to Dismiss Employee’s Claims for Gender Discrimination, Sexual Harassment and Retaliation Against Employer

Gregory S. Schaer, a Monmouth County based New Jersey Employment Attorney located in Manalapan, represented the employee in a lawsuit against their employer alleging claims of gender discrimination, sexual harassment and retaliation.

In Blakey v. Continental Airlines, Inc. , 1997 U.S. Dist. LEXIS 22068 (D.N.J. 1997) , a female airline Captain sued her employer, Continental Airlines, Inc., alleging sexual discrimination in the form of a hostile work environment in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000 and the New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-1, et. seq., sex discrimination in the form of disparate treatment in violation of Title VII and the NJLAD, retaliation in violation of Title VII and the NJLAD, retaliation in violation of the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 39:19-1, retaliation under the public policy of New Jersey and defamation.

The employee alleged that while she was enrolled in ground school to be certified as a Captain on the A300 airbus aircraft where she was the only female pilot, a male pilot circulated pictures of his nude girlfriend and others boasted about sexual matters. After completing her training and becoming certified as a pilot, the employee alleged that she was subjected to a sexually harassing, hostile work environment based upon abusive comments and conduct directed at her because of her gender. She claims that pornographic materials were frequently placed in the cockpit of aircraft that she flew.

Although the employee informed Continental’s management of the profanity directed at her and the pornographic and sexually explicit photographs in her work areas, she alleged that Continental took no action to address the problem. The employee claimed that she made periodic and recurring complaints to management concerning the hostile work environment and the continued presence of pornography in her work areas.

After complaining of the harassment, the employee alleged that she was subjected to retaliation and harassment by being locked out of the computer system and that someone had tampered with her files and mailbox. After her complaints, she claimed there was an increase in the number of pornographic images in the aircraft and contends that she was the target of increased harassment.

The employee subsequently filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and requested a leave of absence to deal with the stress resulting from the harassment.

The employer moved for summary judgment, attempting to have the employee’s claims dismissed prior to trial. The court held that the intent to discriminate on the basis of sex in cases involving sexual propositions, innuendo, pornographic materials, or sexual derogatory language is implicit and thus should be recognized as a matter of course.

The court also held that the employee had stated a claim based upon graffiti filled with derogatory language that was directed against her as well as the harassment that was directed against her including being locked out of the computer system. The court rejected the employer’s contention that these incidents never occurred or were “minor incidents”.

The court held that in determining whether the discrimination was pervasive and regular, the court must look to the totality of the circumstances. The court stated that repeated incidents of pornography, lewd graffiti, abusive comments by male co-workers, the denial of early leave, the lockouts from the Company computer and the unequal application of sick leave and other Company policies gave rise for a claim of pervasive harassment.

The court also held that evidence of other episodes of harassment may be relevant to show that harassment of the employee was severe and regular. The court noted that other female Continental pilots had experienced the presence of pornography in the cockpit and that their experiences further supported the employee’s allegations that the conduct was pervasive and regular.

The court held that in order to establish a claim for discrimination, an employee need not prove serious psychological harm or physical injury. The court held that it was clear that the employee was affected by the conduct, that she was forced to take sick leave due to the stress of the harassment and that she also needed to seek professional help to deal with the stress. The court noted that the employee contended that she was suspended for two (2) weeks due to the ongoing harassment and that these allegations were sufficient to establish a claim.

The employer argued that the employee’s hostile work environment claim should have been dismissed due to her alleged failure to utilize the Company’s grievance procedures. However, the issue of whether the employer had adequate grievance procedures for dealing with sexual harassment and discrimination was an issue of material fact in dispute.

The court also rejected the employer’s attempt to dismiss the employee’s claims for disparate treatment. The employee asserted that she was suspended even for doing things that male pilots did without being suspended, that she was singled out for her attendance record, and that she was forced to take a psychiatric exam while male employees were not.

However, the court rejected the employer’s claims finding that the employee provided evidence that the employer’s argument may be pretexual and that the employer’s explanation for taking action against the employee were questionable.

With respect to the employee’s claim for retaliation, the employer attempted to argue that the employee had not been subjected to an adverse action which was sufficient to allow her to pursue a legal claim. However, the court held that the employer’s suspension of the employee, counseling the employee for her attendance record, requiring the employee to attend a psychiatric examination as well as the employer’s refusal to grant the employee a leave of absence represented adverse employment actions that were sufficient to state a claim.

Finally, the employer attempted to have the claims dismissed on the basis that the employee was barred from pursuing other remedies due to the availability of worker’s compensation. However, the court held that the Worker’s Compensation Act does not cover every cause of action against an employer and that an employee may bring an action against his employer based upon an intentional wrong, thereby escaping the exclusivity provision of the Worker’s Compensation Act if the employee can prove deliberate intent either as a desire to cause the consequences of an act or substantial certainty that those consequences will result.

The court held that the New Jersey Law Against Discrimination did not intend to require employees to pursue claims for discrimination, harassment or retaliation in the workplace through worker’s compensation. The court found that because these claims involved intentional wrongs, they are not subject to the exclusivity provisions of the Worker’s Compensation Act and was not barred by the Worker’s Compensation Act.

To speak with an experienced New Jersey Employment Law Attorney, contact the Law Offices of Gregory S. Schaer, LLC, conveniently located in Monmouth County, New Jersey.

1. Blakey v. Continental Airlines, 1997 U.S. Dist. LEXIS 22068 (D.N.J. 1997)