A new federal appeals court ruling invoked the #MeToo movement to make it harder for employers to defend against sexual harassment claims lodged against supervisors
Sheri Minarsky endured several years of sexually oriented conduct directed toward her by her supervisor, Thomas Yadlosky, the former Director of Susquehanna County’s Department of Veterans Affairs. Among other things, Yadlosky repeatedly and forcibly kissed Minarsky on the lips, pulled her against him, came up behind her to massage her neck and sent sexually-suggestive messages to her work computer.
Yadlosky apparently behaved this way toward other employees as well, twice receiving reprimands for it. Minarsky never reported Yadlosky’s behavior, however, because she knew he was “nasty” and with her daughter needing treatment for cancer, she could not take any chances on losing her job and health insurance.
Yadlosky eventually was terminated for harassing other female employees. Minarsky remained in her job but continued feeling uncomfortable due to an increased workload and her new supervisor’s constant questions about what had taken place regarding Yadlosky. She eventually quit and sued Yadlosky and her former employer for sexual harassment. The trial court dismissed the case, prompting Minarsky take her claims to the Third Circuit court of Appeals.
When is an Employer Liable for Harassment by a Supervisor?
When a hostile work environment is created by co-workers, an employer will be held responsible if it is shown that the employer knew or should have known of the offending behavior and failed to take timely and appropriate corrective action.
When a supervisor creates the hostile work environment, the employer will be held strictly liable if the victimized employee suffers a tangible employment effect, e.g. termination, failure to promote or some other identifiable adverse impact to the job.
The Faragher/Ellerth Defense
Where a supervisor’s harassment does not culminate in a tangible employment action, an employer has a very narrow window of opportunity to escape liability. In 1998, the US Supreme Court decided two companion cases (Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth) that created an exception to strict liability for supervisory harassment. This exception, now deemed the “Faragher/Ellerth defense”, provides that an employer can avoid liability for a hostile work environment caused by a supervisor if it is shown that:
1. The employer exercised reasonable care to prevent and promptly correct harassing behavior; and
2. The employee unreasonably failed to take advantage of preventative or corrective measures made available to her.
The “reasonable care” standard typically requires such measures as maintaining and publicizing an effective anti-harassment policy and effectively responding to and resolving harassment incidents of which the employer is aware.
The Third Circuit’s #MeToo Decision
The Third Circuit reversed the lower court’s dismissal of Minarsky’s case, ruling that it was up to the jury to decide whether the employer proved the first element of the Faragher/Ellerth defense in light of their awareness of Yadlosky’s behavior.
In addition, the Appeals Court determined that the jury should determine the reasonableness of Minarsky’s failure to report the harassment due to her fears of retaliation and the futility of reporting the harassment. In this regard, the Court acknowledged the impact of the #MeToo movement in explaining:
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.
Based on this analysis of the current social climate, the Court declined to make a determination and allowed the fact-sensitive inquiry of whether the employer and the employee’s actions were reasonable to be decided by the jury.
While the Third Circuit’s decision is not binding in Minnesota, the Minarsky decision indicates that courts may be rethinking when an employee’s failure to report supervisory harassment is reasonable. Given the tenor of the times, as well as the pro-employee slant of a typical jury, this decision is very troubling.
Employers must remain diligent by enforcing and publicizing their harassment policies, investigating complaints of harassment, and taking effective action to stop harassment in their workplaces.