The Third Circuit has reversed a trial court’s decision that dismissed a sexual harassment lawsuit because the plaintiff employee never complained directly to her employer. The decision is causing employment attorneys across the country to question the continued viability of the Faragher-Ellerth defense, which permits employers to avoid liability for sexual harassment where an employee fails to make a formal complaint about sexual harassment directly to the employer.
In the case of Sheri Minarsky v. Susquehanna County and Thomas Yadlosky, Jr., the employee began her employment as a part-time secretary with the Susquehanna County Department of Veterans Affairs from September, 2009. The employee claimed that she had been sexually harassed by her supervisor throughout her employment starting from the very beginning. The sexual harassment included her supervisor attempting to kiss her on the lips, massaging her shoulders while she was at her computer and approaching her from behind and pulling her against him. The employee also claimed that the supervisor would often question her whereabouts during her lunch hour and would also call her at home under the pretense of a work-related inquiry only to then ask personal questions unrelated to work. The supervisor also sent sexually explicit messages through email to the employee.
While the employee never complained to her employer about her claims of sexual harassment in fear of retaliation, the employer was aware of the supervisor’s inappropriate behavior toward other women, which resulted in two verbal reprimands. Other employees also raised concerns that the supervisor would attempt to kiss employees under the mistletoe during Christmas time.
The continuous sexual harassment began taking a toll on the employee resulting in her seeking medical treatment from her physician. Ultimately, the employee decided to write an email directly to her supervisor about the sexual harassment in hopes that it would make him stop. In the email, the employee wrote, “I want to just let you know how uncomfortable I am when you hug, touch and kiss me. I don’t think this is appropriate at work, and would like you to stop doing it. I don’t want to go to [the employer]. I would rather resolve this ourselves.” The supervisor responded with an email advising the employee that he never meant to make her feel uncomfortable, that he shows affection to other people at work and that he was disturbed that she put her concerns in an email instead of talking directly to him.
Around the same time of the email exchange, the employee discussed the sexual harassment and hostile work environment with another co-worker. That co-worker then discussed the sexual harassment complaint with another co-worker and the conversation was overheard by another supervisor. The employer then conducted a sexual harassment investigation, which resulted in the employer terminating the supervisor for sexual harassment. A few years later, the employee quit her job claiming she was uncomfortable in her role after her supervisor was fired because her workload increased and that her new supervisor had questioned her about the prior sexual harassment and asked her if she had caused others to be fired.
The trial dismissed the employee’s sexual harassment lawsuit by holding the employer avoided liability for the supervisor’s sexual harassment because the employee did not avail herself to the employer’s anti-discrimination policy by failing to complain to the employer.
This is known as the Faragher-Ellerth affirmative defense to claims of sexual harassment. The Faragher-Ellerth defense is available only in situations where the sexual harassment has not resulted in a tangible employment action. Tangible employment actions can include thing such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits. In situations where an employee does not suffer any tangible employment action, an employer can avoid liability under this affirmative defense by showing that it (1) exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
In this case, the employee did not suffer any tangible employment action as a result of the sexual harassment because she quit years after the supervisor was terminated by the employer. The Third Circuit, however, found that there was a question of fact concerning whether the employer exercised reasonable care to prevent and correct promptly the sexually harassing behavior by noting that the supervisor had exhibited a pattern of unwanted advances toward multiple women and had been reprimanded twice before his termination. The appeals court also recognized that there were indicators that the supervisors behavior formed a pattern of conduct thereby putting the effectiveness of the employer’s anti-discrimination policy in question.
The Third Circuit also rejected the trial court’s determination that the employee acted unreasonably in failing to report the sexual harassment directly to her employer. While the acknowledging that the courts often find that an outright failure to report persistent sexual harassment can be unreasonable as a matter of law, the Third Circuit held that “a mere failure to report one’s harassment is not per se unreasonable.”
The Third Circuit specifically acknowledged that this case came to the court in the midst of the national news regarding rampant sexual misconduct and the #MeToo movement. In a footnote in the decision, the Third Circuit cited to the 2016 Equal Employment Opportunity Commission Select Task Force Study that found that approximately 75% of victims of sexual harassment never report issues of sexual harassment to their employer. This part of the opinion is being applauded by plaintiff employment attorneys as a long overdue acknowledgment of the difficult realities faced by victims of sexual harassment in deciding whether to complain or not to complain to their employer. As the EEO Task Force Study found, complaining to an employer is the most unlikely action taken by a victim of sexual harassment.
Many plaintiff-side employment attorneys are optimistic that this decision could be the beginning of judicial scrutiny of the Faraher-Ellerth defense and hope that more court’s begin recognizing the reality that most victims of sexual harassment do not complain in fear of reprisal, blame, embarrassment and inaction. Our New Jersey employment attorneys will continue to keep a close eye on whether our federal and New Jersey courts will be inclined to rule more sympathetically towards victims of sexual harassment in cases in which they do not complain directly to the employers.