Don’t Ignore the Kissing Supervisor—Court Rules that Employer’s Knowledge of Past Behavior Negates Faragher-Ellerth DefenseEmployment 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.

Revamping Your Anti-Harassment ProgramsIn the wake of the #MeToo movement, I have clients wanting to know what they can do both to improve their workplace and protect themselves. They all have good policies and regularly train supervisors and employees on them. So what’s next? Although there is no silver bullet, I suggest you start with the following three things.

Review Your EEO Policy

Although most EEO policies are pretty straightforward, they can always use a little polishing. Does the policy mention all of the protected categories that apply to all of your locations? As a company grows, it can find itself with employees in states or municipalities that have classifications that are not covered in the federal laws. Many states have laws explicitly prohibiting discrimination based on sexual orientation and gender identity. Additionally, a number of federal circuit courts have ruled that Title VII’s prohibition against sex discrimination also covers discrimination based on sexual orientation or gender identity. Then there are municipalities that have covered even more categories. For example, Washington, D.C.’s Human Rights Law prohibits discrimination based on marital status, personal appearance, family responsibilities, matriculation and political affiliation.  Be sure your EEO policy is keeping up.

Review Your Harassment Policy

You need to update your harassment policy like you are updating your EEO policy. In addition to making sure the protected categories are broad enough, think about beefing up your reporting processes.

For years I have preached to clients that they need to have centralized reporting rather than having employees report to any supervisor. It is not that I want to make it hard to report—however, front line supervisors are in a tough spot. They may not have the skills to handle a complaint. Also, front line supervisors are more likely to know a lot about the complainant and the alleged perpetrator and handle it themselves. You don’t want someone discounting a report because “everyone knows the complainant is a liar” or “I know he didn’t mean anything by that.” Those are not good legal defenses.

I am coming to the conclusion that reporting hotlines, including the ability to report anonymously, may be the best options. Properly run hotlines get reports to the right people sooner. Also, if someone has the ability to report anonymously, it makes a later argument that he or she didn’t want to report because they would suffer retaliation a lot less convincing. Investigating an anonymous report presents challenges, but I think it is better to investigate what you can.

And another thing—really think about whether you want to say you have a zero tolerance policy. I find that is easily misinterpreted to mean that anyone found to have violated the harassment policy will be terminated. Is that really what you mean? I find that sexual harassment policy violations can come in a lot of different packages, ranging from unintended, thoughtless comments to boorish behavior to sexual assault. Although you can decide that you will treat all of those events the same, do you want to? In some ways, such a one-size-fits-all approach discourages complaints about behavior that we want to change, but that doesn’t deserve termination.

Revisit Your Training

Train people, and track it. New employees and new supervisors should complete training either before or shortly after they start. Everyone should go through training of some sort periodically. California requires everyone to be trained at least every two years. The State of New York has just enacted a law  that requires employers to provide annual sexual harassment prevention training.

What should your harassment training look like? New York’s new law comes with model training, including minimum standards, for employers to use. Saying that you met those standards, even if you didn’t have to, wouldn’t be a bad fact in defending a claim. So, even if you don’t have employees in New York, it may be worth looking at this material to see if there are parts you want to use.

Get company leadership on board. Having senior leadership (not just HR) involved in training gets employees’ attention and sends the message that this is important. It also gives you the opportunity to talk about workplace culture and respect for each other—more than just saying “don’t harass each other.”

Get feedback from the participants. Give them a chance to ask questions or take a test to be sure they got the message. Send a follow-up message to get feedback and see what stuck.

Winning Harassment Claims in the #MeToo EraIn this #MeToo era, employers are, understandably, a little sensitive when someone raises a claim of harassment. Even with the heightened sense of peril, companies should remember that if they are doing the right thing—having effective policies in place and handling complaints appropriately—they can still prevail. A recent decision, Peebles v. Greene County Hospital Board and Elmore Patterson, makes this abundantly clear.

The Facts

Elmore Patterson was the CEO of Greene County Hospital’s (GCH) residential care facility. Beginning in November 2013, Wennoa Peebles was his executive assistant, as well as an accounts payable clerk in the business office. According to Peebles, Patterson created a hostile work environment in a number of ways, including his use of profanity, demeaning comments (telling Peebles she was “just part of the room” and “not to speak,” referring to female employees as “opossums” and that he would not sleep with the “opossums”), and occasional, off-handed sexual comments (such as comments about paddling a female employee’s rear end and bosom).

Peebles, who was not the only employee who raised concerns about Patterson, complained to a number of GCH board members about his behavior. In October 2015, GCH got a letter from Peebles’ lawyer noting that Peebles’ had complained about her work environment, was experiencing discrimination and retaliation, and was filing an EEOC charge. She filed the charge on November 4, 2015, alleging sex discrimination, retaliation, and a hostile work environment. About 10 days later, GCH told Peebles she should submit any complaints about her work environment to a designated board member. GCH also gave Peebles the option of transferring to her prior position (certified nursing assistant) at no loss of pay.

In January 2016, Patterson suspected that Peebles had disclosed board member email addresses. When he asked Peebles about it, she denied doing so. Patterson did some additional digging and concluded that not only had she disclosed the emails, she had lied to him about it and terminated her. Not surprisingly, Peebles believed that GCH terminated her not because of her disclosure of the email addresses but because of her protected activity.

Summary Judgment for the Employer

The district court granted summary judgment to GCH on both the harassment and retaliation claims. With regard to Peebles’ harassment claim, GCH apparently conceded that Peebles had established that she belonged to a protected group, that she was the subject of unwelcome harassment, and that the harassment was based on her sex. The court found, however, that Peebles had not established that the harassment was sufficiently severe or pervasive enough to alter the terms and conditions of employment to create a discriminatory or abusive working environment. The court explained that there are four factors to consider in determining whether conduct is severe or pervasive enough to permeate a workplace:

  • The frequency of the conduct
  • The severity of the conduct
  • Whether the conduct is physically threatening or humiliating, or a mere offensive utterance
  • Whether the conduct unreasonably interferes with the employee’s job performance

On balance, the court found that Patterson’s conduct over the two-year period, which was described in the opinion as hardly “boss of the year” material, was not sufficiently severe or pervasive. Accordingly, the court granted summary judgment in favor of GCH.

The court went on to find that Peebles failed to establish a case of retaliation, and GCH’s reasons for terminating her employment were legitimate and had nothing to do with her complaints about Patterson.

Takeaways

So, what can we learn? GCH did a lot of things right and still ended up getting sued—but they won. Here are a few things that employers should consider when a harassment complaint (or something that could be a harassment complaint) arises:

  • Effectively manage the complaints immediately. As soon as Peebles made complaints about Patterson, GCH addressed them, going so far as to designate a board member as a contact. GCH did this even though at least some of Peebles’ concerns were about bad behavior that did not clearly fall in the sexual harassment realm.
  • Take steps to stop any alleged harassment. In addition to a complaint procedure, GCH offered Peebles a transfer so she would not have to work with Patterson. While this is not always appropriate, employers should consider whether it is a viable option. You would not want to involuntarily transfer someone who complained, but giving them the option of getting away from the alleged harasser may be a good option to retain an employee and prevent a retaliation complaint. Of course, that is not what happened in this case, but it is still a good idea.
  • Don’t limit the assessment to the legal standard. Although the court relied on whether the behavior was sufficiently severe and pervasive enough to create a hostile work environment, employers should not limit their internal assessment to this legal standard. Behavior may not rise to the level of legal harassment but it can still violate a company’s harassment policy.