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.
In Minarsky, the Third Circuit clarified what constitutes reasonable care for both the employer and employee—and it did so in a manner that favors employees. Ms. Minarsky worked for Susquehanna County in an administrative position. Her supervisor, Mr. Yadlosky, had a history of grabbing women in the workplace to hug and kiss them. He also sent Ms. Minarsky sexually inappropriate emails on more than one occasion. Mr. Yadlosky’s supervisor, the Chief County Clerk, had repeatedly reprimanded him for similar behaviors.
The County had a sexual harassment policy directing victims to report harassment. Ms. Minarsky did not report the harassment, but offered three reasons for her failure to do so: (1) she needed to keep her job because her young daughter was ill; (2) Mr. Yadlosky had made veiled threats of retaliation; and (3) she knew that the County had only verbally reprimanded Mr. Yadlosky in the past. Instead of complaining internally, Ms. Minarsky resigned and filed suit against the County and Mr. Yadlosky.
On appeal, the Court reasoned that a reasonable jury could find that 1) the County failed to use reasonable care by failing to effectively stop Mr. Yadlosky’s pattern of known harassment; and therefore 2) Ms. Minarsky did not fail to use reasonable care by not reporting Mr. Yadlosky.
Minarsky represents something of a departure from prior cases, many of which have found that an employee’s failure to utilize their employer’s anti-harassment policy is unreasonable, even when the employee fears retaliation. In making this finding, the Court acknowledged the shift in public thinking about sexual harassment brought about by the #metoo movement:
This appeal comes to us in the midst of national news regarding a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by the victims. It has come to light, years later, that people in positions of power and celebrity have exploited their authority to make unwanted sexual advances. In many such instances, the harasser wielded control over the harassed individual’s employment or work environment. In nearly all of the instances, the victims asserted a plausible fear of serious adverse consequences had they spoken up at the time that the conduct occurred. While the policy underlying Faragher-Ellerth places the onus on the harassed employee to report her harasser, and would fault her for not calling out this conduct so as to prevent it, a jury could conclude that the employee’s non-reporting was understandable, perhaps even reasonable. That is, there may be a certain fallacy that underlies the notion that reporting sexual misconduct will end it. Victims do not always view it in this way. Instead, they anticipate negative consequences or fear that the harassers will face no reprimand; thus, more often than not, victims choose not to report the harassment.
While this is more of a clarification than a change in law, Minarsky may make it easier for employees to bring sexual harassment claims, even in the absence of a timely internal report of harassment. For employers wishing to avoid these types of high-exposure claims, well-drafted workplace harassment policies and periodic anti-harassment training are important, but are not enough. Harassment prevention should not just be just window-dressing included in personnel manuals, but must be an integral part of the organization’s cultural DNA. Employers who become aware of alleged harassment cannot rely on toothless warnings, nor can they turn a blind eye to high-performing or well-liked employees or supervisors who have engaged in a pattern of “colorful” behavior towards women (or any other legally-protected groups) in the workplace.
Harassment claims often succeed or fail depending upon when the employer became aware of workplace harassment—either through a complaint, or conduct that was witnessed by managers or supervisors—and what steps were taken to address it at that time. When allegations are first raised, an employer may have only one chance to respond in a manner creates an effective resolution to the problem and demonstrates that preventing and stopping harassment is truly a priority for the company. The Labor & Employment Department of Obermayer Rebmann Maxwell & Hippel LLP can guide employers through this process.
 The federal appellate court for Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
Andrew J. Horowitz is an attorney in Obermayer’s Pittsburgh Office, practicing in the areas of general and complex litigation and employment law. He can be reached at 412-288-2461 or Andrew.Horowitz@obermayer.com