Reexamining Reasonableness: What Employers Should Know About the Third Circuit’s Take on the Faragher-Ellerth Defense
The Third Circuit Court of Appeals recently issued an opinion in Minarsky v. Susquehanna County, No. 17-2646 (July 3, 2018). The decision, which vacated the entry of summary judgment in favor of an employer that had asserted the Faragher-Ellerth defense to a sexual harassment claim based upon a hostile work environment, provides some important lessons for employers.
Sheri Minarsky began working as a secretary in Susquehanna County’s Department of Veteran’s Affairs in September 2009. Minarsky alleged that shortly thereafter, the department’s former director, to whom she reported, began to engage in unwelcome physical contact with her, including attempting to kiss her on the lips, massage her shoulders, or touch her face. Accordingly to Minarsky, the former director also sent her sexually explicit email messages, called her at home on non-work days and questioned her about personal matters during those discussions, interrogated her about her activities during lunch hours, and engaged in other unpredictable behavior. Minarsky asked the director to discontinue the behavior soon after it started, but he did not do so. At the suggestion of her physician, Minarsky eventually wrote an email to him in July 2013, advising him that his behavior of hugging, touching, and kissing her made her uncomfortable and asking him to stop. Although the director responded that he would do so, the county learned of his conduct from a coworker and friend in whom Minarsky had confided; soon thereafter, the director admitted to the allegations and his employment was terminated.
Minarsky resigned several years later, and she filed a lawsuit in the U.S. District Court for the Middle District of Pennsylvania against the county and the former director. Following discovery, the county moved for summary judgment. The district court entered judgment in favor of the county on Minarsky’s Title VII and state law discrimination claims.
The Third Circuit’s Decision
The Third Circuit vacated the district court’s entry of summary judgment. Examining the first prong of the Faragher-Ellerth defense (whether the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior), the court concluded that although the county had adopted a written anti-harassment policy which was provided to Minarsky—and although the county had reprimanded the director twice for inappropriate conduct towards other female employees and later terminated his employment—a jury could find that the county had not exercised reasonable care to prevent the director’s harassing behavior based upon the existence of a pattern of unwelcome advances towards other women and the placement of Minarsky in a setting where she worked alone with the former director once a week.
The Third Circuit then turned to the second prong of the Faragher-Ellerth defense: whether the harassed employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. The court concluded that disputed issues of fact also existed with respect to whether Minarsky had acted reasonably in failing to take advantage of preventative or corrective opportunities or to avoid harm otherwise. Although it was undisputed that Minarsky had not reported the harassment, the court concluded that a jury could find her silence to be objectively reasonable in light of the specific evidence of circumstances that contributed to Minarsky’s subjective fear of retaliation.
The Third Circuit’s decision highlights the increasing challenges that employers face in defending sexual harassment claims. Although the district court found that the county had satisfied the elements of the Faragher-Ellerth defense as a matter of law, the Third Circuit considered a broad range of factors relating to the director’s history of interactions with Minarsky and other women, the employer’s response to reports it received concerning his unwelcome conduct towards other women, and the circumstances that may have influenced Minarsky to remain silent for several years. The court held that disputed issues of fact existed concerning the reasonableness of the county’s efforts to prevent such behavior and the reasonableness of Minarsky’s silence about the former director’s unwelcome conduct.
Beyond the potential impact of this decision in the litigation arena, employers operating within the states that comprise the Third Circuit (Delaware, Pennsylvania, New Jersey, and the U.S. Virgin Islands), as well as those elsewhere, may wish to consider measures that they can take to develop and maintain a workplace culture that promotes reporting, avoids discouraging or prematurely discounting “late” reports, and that includes sufficient safeguards to detect and prevent or otherwise address patterns of unwelcome physical and non-physical behavior. In undergoing an evaluation, employers may consider the following instructive points from the Third Circuit’s decision:
Dissemination of a written policy may not be enough.
Like many employers, the county had adopted a written policy that prohibited workplace harassment, instructed employees to report harassment to a supervisor, and identified alternate channels if the supervisor was the harasser. The county had also distributed its policy to employees—including Minarsky—and obtained a record of receipt.
Reprimanding a supervisor for harassment may not be enough.
Although an appropriate response will depend upon an examination of the relevant circumstances, a reprimand may not be enough. On the two occasions when the county learned that Minarsky’s supervisor had engaged in inappropriate physical contact with other female employees, it verbally reprimanded him. However, these verbal warnings were not documented in his personnel file and there was no follow-up by the county.
Patterns of unwelcome behavior may merit additional attention.
In vacating the entry of judgment in favor of the county, the Third Circuit noted that other women (including individuals designated in the policy as alternate reporting contacts) had been recipients of unwelcome behavior from the supervisor. Although the Third Circuit’s decision does not make clear whether the county knew of all the instances of unwelcome behavior prior to the lawsuit, the court highlighted evidence that the supervisor’s behavior extended to individuals other than Minarsky.
Physically isolated work areas may constitute a risk factor.
One factor that the court considered in assessing the reasonableness of the county’s efforts to prevent harassment and the reasonableness of Minarsky’s extended silence (for nearly four years) was the fact that Minarsky and her boss generally worked in an area situated away from other employees. Although the logistics of some operations may make similar circumstances inevitable, certain work arrangements may also trigger a need to implement additional methods to prevent or detect potential violations of company policy or the law.
Non-physical conduct may be relevant to the reasonableness of a response to harassment.
Policies and training efforts understandably focus on unwelcome conduct based upon an employee’s sex, and it can be more challenging to identify and prevent non-physical interactions that are not of a sexual nature but which impact workplace dynamics. However, in concluding that the reasonableness of Minarsky’s extended silence was an issue for a trier of fact, the Third Circuit took into account her testimony that her supervisor’s behavior was unpredictable and at times “nasty,” that he cautioned her that she could not trust his superiors, and that he told her that her position could be eliminated if she did not appear busy. Although the court stated that a fear of retaliation that is “generalized and unsupported by evidence” does not excuse a failure to report, the Third Circuit’s willingness to consider specific explanations for non-reporting presents a practical challenge for employers that may not know about or appreciate the impact of these interpersonal interactions until after a legal claim is filed.
The public discourse about #MeToo may be influential.
Although acknowledging that “our case precedent has routinely found the passage of time coupled with the failure to take advantage of the employer’s anti-harassment policy to be unreasonable,” the Third Circuit cited media reports highlighting the frequency of sexual harassment and the reasons victims do not report harassment to support its conclusion that “a mere failure to report one’s harassment is not per se unreasonable” and that the “passage of time is just one factor in the analysis.”