Employment lawyers and most HR professionals are familiar with the Faragher-Ellerth defense to a claim of sexual harassment. In short, if an employer can show that (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, AND (2) the employee unreasonably failed to take advantage of available preventive or corrective opportunities, then the employer is not liable. Usually, the defendant-employer points to its sexual harassment policy in the employee handbook and shows that despite a complaint procedure, the plaintiff-employee never reported the harassment. But is that enough? In Minarsky v. Susquehanna County, the Third Circuit recently stated that it may not be, and the facts may provide a good lesson on the importance of diligently enforcing sexual harassment policies.
Continued Pattern of Sexual Harassment—But No Report
Sheri Minarsky was a part-time secretary at the Susquehanna County Department of Veterans Affairs. On Fridays, she worked for Thomas Yadlosky in an area separate from the other county employees. From the very beginning, Mr. Yadlosky began to sexually harass Ms. Minarsky—attempting to kiss her on the lips, pulling her against him from behind, massaging her shoulders and sending her sexually explicit emails.
When she started work, Ms. Minarsky signed the county’s General Harassment Policy which stated that an employee could report any harassment to a supervisor, and if the harasser was the supervisor, then she could report that activity to the chief county clerk or a county commissioner. Ms. Minarsky did not report the harassment to Sylvia Beamer, the chief county clerk, or to any of the county commissioners.
Why did she not report the behavior? Ms. Minarsky said not only did she fear retaliation, she also knew that the chief county clerk—one of the people to receive reports—was aware of Mr. Yadlosky’s inappropriate behavior to other women. Mr. Yadlosky had been reprimanded, but it didn’t stop the behavior. It also came out in discovery that Mr. Yadlosky had even tried to embrace Ms. Beamer herself!
After four years of mistreatment by Yadlosky, the harassment had reached a level where her own doctor told her to report it. Ms. Minarsky finally sent Mr. Yadlosky an email stating that she thought his behavior was inappropriate. She also told a coworker who subsequently reported it to Ms. Beamer. Mr. Yadlosky was interviewed, and when he admitted to the allegations, he was suspended and ultimately terminated.
Suit and Judgment against Ms. Minarsky
Ms. Minarsky filed suit under Title VII for gender discrimination, hostile work environment, quid pro quo sexual harassment, and several state law claims. After discovery, the county moved for summary judgment based on the Faragher-Ellerth defense—once Ms. Minarsky complained, the county terminated Yadlosky. The lower court held that the county acted reasonably by maintaining an anti-harassment policy and by reprimanding Mr. Yadlosky for the past incidents and promptly terminating him when the Minarsky incident came to light. The judge also found that Ms. Minarsky’s failure to report the harassment was unreasonable. The court dismissed her lawsuit, and Ms. Minarsky appealed.
Third Circuit Reverses
The Third Circuit recognized that the county maintained an anti-harassment policy, but was not willing to find as a matter of law that its responses to the past complaints about Mr. Yadlosky were reasonable. The court noted that Mr. Yadlosky’s record showed a pattern of unwanted advances against multiple women other than Ms. Minarsky—including two women in authority, Ms. Beamer and a female county commissioner. The commissioner testified that Mr. Yadlosky attempted to kiss her on the cheek approximately 10 times but he had not been reprimanded. The court noted that the county had indicators of a pattern of conduct, as opposed to mere stray incidents, “yet they seemingly turned a blind eye toward Yadlosky’s harassment.” The court stated that Mr. Yadlosky’s termination may not be a reflection of an effective anti-harassment policy, but instead simply showed that Ms. Minarsky’s complaint was “the straw that broke the camel’s back.” That was enough of a dispute of material fact that the court felt it should be decided by a jury.
With regard to Ms. Minarsky’s failure to report the harassment, the court felt that a jury could find that she did not act unreasonably under the circumstances. The court discussed the current atmosphere about sexual harassment and noted that “there may be a certain fallacy that underlies the notion that reporting sexual misconduct will end it.” The court cited studies showing that a majority of women who experience sexual harassment fail to report it and noted that “a mere failure to report one’s harassment is not per se unreasonable.” The fact that the county was aware of a past pattern of harassment by Mr. Yadlosky and yet the behavior continued could support a feeling by Ms. Minarsky that reporting it would be futile, if not detrimental to her job. Ultimately, the court held that the reasonableness of her inaction was also an issue that needed to be decided by a jury.
Is Faragher-Ellerth Dead?
While the Third Circuit certainly did not abolish the Faragher-Ellerth defense, it did chip away at some of its edges. Certainly, the extreme and prolonged behavior by Mr. Yadlosky here, coupled with the county’s apparent failure to address it effectively, didn’t help the county’s case. The fact that the appellate court found that a jury should decide the reasonableness of the county’s response should give all employers pause. This case may indicate that the simple act of putting an anti-harassment policy in a handbook is no longer a get-out-of-jail-free card, even if an employee delays reporting sexual harassment.
The most important lesson in this case is that employers have to take all reports of sexual harassment seriously, and respond to those reports with appropriate and effective discipline. If a company has an employee who is known as a continual harasser—even if the employee has been written up a few times in the past—it has a ticking time bomb on its hands. If you get a complaint, address it and make sure the behavior stops. Follow up to make sure the behavior has truly stopped and there is no backsliding. The last thing you want is to have an employee argue that he or she didn’t report an incident because similar activity had been reported in the past and the company failed to handle it.