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Court: Failure to report sexual harassment does not doom employee’s case

#MeToo influencing applicable law

Posted November 6, 2018

The #MeToo movement is over a year old, and as sexual harassment cases make their way through the courts, the rulings appear to be reflecting some changes. One court in particular helps illustrate how the movement is influencing laws that govern sexual harassment.

The case in question involved a supervisor who, for years, made unwanted sexual advances toward his part-time secretary. Soon after she started working at the company, the supervisor would attempt to kiss her on the lips, approach her from behind and embrace her, massage her shoulders, touch her face, call her at home on her days off asking personal questions, and send sexually explicit email messages.

The employee asked the supervisor to stop his inappropriate behavior, but to no avail. The employee never reported the conduct because she feared retribution from him. She also noted that, when his behavior was observed by others, any reprimands were unsuccessful and, therefore, reporting was futile. She was worried that she might lose her job if she voiced her distress, as she needed to pay her daughter’s medical bills.

The persistent nature of the supervisor’s behavior did, eventually, come to light and he was terminated. Several years later, the employee quit, indicating that she was uncomfortable because her workload increased, and because of inquiries from her new supervisor asking about what had transpired and who else she had caused to be fired.

The employee sued, and at issue in the case were the two elements of the employer’s Faragher-Ellerth defense: If the harassed employee suffered no tangible employment action, the employer could avoid liability. Under the Faragher-Ellerth defense, however, an employer must show the following:

  • It exercised reasonable care to avoid harassment and to eliminate it when it might occur, and
  • The employee failed to act with like reasonable care to take advantage of the employer’s safeguards and otherwise prevent harm that could have been avoided.

A functioning anti-harassment policy could satisfy the first element, and proof that an employee failed to exercise reasonable care to avoid harm can satisfy the second element.

The court determined that the employer did not have reasonable policies and responses that satisfy the first element, as company leaders were aware of the supervisor’s behavior but seemingly turned a blind eye toward it. The court also found that the employee’s silence might be viewed as objectively reasonable in light of the persuasive facts.

In its opinion, the court indicated that in nearly all of the recent instances of sexual harassment, “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.”

Given the pervasiveness of sexual harassment and the high number of claims that go unreported (75%), the court indicated that if an employee’s genuinely held, subjective belief of potential retaliation from reporting her harassment appears to be well-founded, and a jury could find that this belief is objectively reasonable, the trial court should not find that the defendant has proven the second Faragher-Ellerth element.

The case makes it easy to see how an employer’s defenses may be weakening in light of the #MeToo movement, since the employer did not get summary judgment under Faragher-Ellerth. The case’s outcome provides employers with yet another reason to ensure their sexual harassment policies and procedures are effective.

Minarsky v. Susquehanna County, Third Circuit Court of Appeals, No. 17-2646, July 3, 2018

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.

Sexual Harassment TrainingJ. J. Keller's Sexual Harassment Training helps all employees—including bystanders—address unwanted and unlawful sexual harassment in the workplace and learn how to respond if an incident does occur.


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