Third Circuit Addresses Sexual Harassment Claims in the #MeToo Era
Published by Eric A. Welter and Megan M. Carboni on August 23, 2018
In Minarsky v. Susquehanna County, the Third Circuit explicitly addresses the #MeToo movement in relation to affirmative defenses for employers facing sexual harassment claims.
In Minarsky v. Susquehanna County, No. 17-2646, WL 32344243 (3d. Cir. July 3, 2018), Sheri Minarski (“Plaintiff”) sued her former supervisor, Thomas Yaldosky, Jr., and former employer, Susquehanna County, alleging sexual harassment under Title VII and the Pennsylvania Human Relations Act. In Minarsky, the Third Circuit took aim at the County’s assertion of the infamous Faragher-Ellerth affirmative defense, creating possible difficulties for employers asserting the defense in the future. The Court ultimately vacated the district court’s grant of summary judgment in favor of the County and remanded the case for further proceedings.
For over four years, the plaintiff worked as a part-time secretary for the County, supervised by Yaldosky. During that time, she endured sexual harassment in the form of unwanted embraces, touching of her face, shoulder massages, and attempts to kiss her on the lips. Because of their isolated work space, other employees rarely witnessed the supervisor’s behavior, except for his attempts to kiss other female employees under the mistletoe during the holiday season. In addition to the physical harassment, the supervisor regularly questioned the plaintiff about her location during her lunch break, calling her at home on her days off, asking personal questions, and sending sexually explicit emails. The plaintiff also alleged that Yaldosky knew that she relied a steady income to pay medical bills for her daughter’s cancer treatment.
The plaintiff further alleged that on multiple occasions, the County became aware of the supervisor’s behavior toward other women. Although Yaldosky was verbally reprimanded twice, the County took no further disciplinary action upon learning of the complained of behavior. During the four years working under Yadlosky, the plaintiff did not report any incidents of sexual harassment. The plaintiff eventually expressed her discomfort with Yaldosky’s conduct only after her doctor urged her to do so because of the decline in her mental health. Additionally, the plaintiff confided in a co-worker about the harassment. The co-worker was overheard by another County supervisor recounting the incidents to another employee. This supervisor immediately notified the County and Yadlosky was placed on leave and later terminated. Following Yadlosky’s termination, the County hired a Human Resources Director to oversee personnel issues.
The Faragher-Ellerth Affirmative Defense
Defending its action (or inaction) in this case, the County asserted the Faragher-Ellerth affirmative defense, which provides that even if a plaintiff establishes harassment, the employer may not be liable as long as the employee suffered no tangible employment action (e.g., hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits). In order to successfully assert this defense, the employer must show “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities by the employer or to avoid harm otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). The first element can be proven by the existence of a functioning anti-harassment policy, and the second shown if the plaintiff unreasonably failed to avail herself of the employer’s preventative or corrective measures.
Faragher-Ellerth Defense Did Not Support Summary Judgment for County
In Minarsky, the Third Circuit noted that the County maintained a written anti-harassment policy that prohibited workplace harassment (which the plaintiff was asked to read and sign on her first day of employment), instructed employees to report harassment to a supervisor, and stated that an employee could also report to the Chief Clerk or a County Commissioner if the employee’s supervisor was the alleged harasser. Although the Court acknowledged the County’s policy, it disagreed with the district court’s finding that the County’s initial admonishments and ultimate termination of Yadlosky were “so clearly sufficient” to warrant a summary judgment in favor of the County. The Court particularly took issue with the County’s knowledge of Yadlosky’s conduct and whether a jury should decide if the County sufficiently exercised reasonable care to prevent and correct his behavior.
The Court further noted that although relevant precedent holds that the “passage of time coupled with the failure to take advantage of the employer’s anti-harassment policy” is unreasonable, “a mere failure” to report a supervisor or fellow employee’s harassment was not per se unreasonable. The passage of time is a single factor in the “circumstance-specific” analysis. The Court concluded that if a plaintiff’s “genuinely held, subjective belief” that reporting harassment would result in retaliation is substantiated by sufficient evidence, then a jury could conclude the plaintiff’s failure to report was reasonable under the circumstances.
In Minarsky, the Third Circuit concluded that the plaintiff’s justifications for remaining silent, including fear of being terminated and “the futility of reporting” due to previously unsuccessful reprimands, coupled with her financial circumstances could be found by a jury to be reasonable under the circumstances. The Court went on to distinguish the circumstances in Minarsky from a situation nowhere the employee’s fear of retaliation is “generalized and unsupported by evidence.” The Court stated that employee exhibiting a generalized fear of retaliation would likely be insufficient to justify a lengthy delay in failing to report the complained of conduct.
Influence of the #MeToo Movement
In addition to vacating the district court’s grant of summary judgment for the County, the Court took aim at the consequences and impact of the #MeToo movement in the workplace, stating:
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 the conduct occurred.
Although, the Faragher-Ellerth affirmative defense “places the onus on the harassed employee to report her harasser,” the Court emphasized that a “certain fallacy” exists underlying the belief that reporting sexual misconduct will end the unlawful behavior. The Court noted that “victims anticipate negative consequences or fear that the harassers will face no reprimand” and choose not to report incidents of harassment, highlighting the statistic that three fourths of women who experience unwanted sexual advances from male superiors do not report the incidents of misconduct.
The Minarsky decision illustrates that the #MeToo movement reaches far beyond matters involving celebrities or politics. Minarsky exhibits what is likely to become a more prescient issue for employers. In light of this decision, employers should ensure their anti-harassment policies are in place and effective, and they should remain proactive when first made aware of inappropriate conduct to prevent future harassment.
Deterrence of unwanted workplace conduct begins with a strong anti-harassment policy and is furthered by prompt and thorough application when an employee lodges a complaint. An effective and functioning policy coupled with routine employee training and education encourages employees to come forward, and it reinforces workplace expectations. Employers should also be cautioned that verbal disciplining of an employee for inappropriate conduct may not satisfy the “reasonable care to prevent and correct promptly any sexual harassing behavior” standard under the Faragher-Ellerth defense. Employers should investigate complaints, establish practices and policies to convey that improper conduct will not be tolerated, and keep clear records of all investigations and resulting discipline. Uniformly implemented and effective anti-harassment policies are an employer’s strongest defense to sexual harassment and hostile work environment claims.Topics: employee discrimination and harassment, Employment Litigation, Harassment, Harassment Investigation, Investigations, me too movement, Policies Procedures and Employee Handbooks, Sexual Harassment, training, workplace harassment