On July 3, 2018 the United States Court of Appeals for the Third Circuit ruled on the case of Minarsky v. Susquehanna County et al, 17-2646 (Jul. 3, 2018). The case clarifies and limits the scope of the Faragher-Ellerth affirmative defense in workplace harassment cases.
Established by the Supreme Court in 1988, the Faragher-Ellerth defense provides the employer a defense to workplace harassment claims when it can show that (1) it exercised reasonable care to prevent harassment and to promptly correct it when it might occur; and (2) that the employee failed to reasonably take advantage of preventative or corrective measures provided by the employer, or to otherwise avoid harm. Usually, this means that if the employer implements a policy prohibiting harassment, and the employee fails to report harassment that violates that policy, then the employee cannot successfully bring a harassment claim. Because this is an affirmative defense, the employer must prove both of the above elements to avoid liability. Continue Reading