With the rise of the #MeToo movement, employers everywhere are smartly taking the time to learn their duties and responsibilities when it comes to preventing sexual harassment. A valuable affirmative defense available to employers facing allegations of sexual harassment is the Faragher-Ellerth defense, named after Supreme Court cases Faragher v. Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). While this defense can be helpful, its scope is being narrowed in the courts. This may be a sign of the times.
Generally, the Faragher-Ellerth defense is available for claims of sexual harassment when the employer can prove:
- the employer exercised reasonable care to prevent and promptly correct sexually harassing behavior in the workplace, and
- the plaintiff employee unreasonably failed to take advantage of the employer’s preventive or corrective measures.
Ideally, if an employer has an anti-harassment policy that prohibits harassment and lists the remedial measures available to employees, and an aggrieved employee unreasonably fails to report the harassment under the policy – this defense can save the employer from liability.
Seems like a simple way to protect yourself, right employers? In practice, however, things aren’t so black and white.
This summer the Third Circuit – the federal circuit covering Delaware, New Jersey and Pennsylvania – vacated a district court’s entry of summary judgement for an employer asserting the Faragher-Ellerth defense. In Minarsky v. Susquehanna County, plaintiff Sheri Minarsky alleged that shortly after starting as a secretary at Susquehanna County’s Department of Veteran’s Affairs, the department’s former director began subjecting her to unwelcome physical contact including shoulder massages, face touching and attempted kissing. The director also allegedly sent her explicit emails and called her at home during non-working hours to engage in inappropriate conversations. Minarsky confronted the director and asked him to stop, but the behavior continued. Eventually, the county found out about the director’s behavior towards Minarsky through another employee and his employment was terminated. Minarsky resigned shortly thereafter and filed suit against the county in the U.S. District Court for the Middle District of Pennsylvania alleging sex discrimination/harassment under Title VII and state law. The District Court entered summary judgement in favor of the county.
On appeal, the Third Circuit examined the second prong of the Faragher-Ellerth defense – whether the plaintiff employee unreasonably failed to take advantage of the employer’s preventive or corrective measures – and found this was a question of fact which should be decided by a jury. The Court reasoned “a jury could conclude that the employee’s non-reporting was understandable, perhaps even reasonable” and therefore a finding of summary judgement was inappropriate. The District Court’s order for summary judgement in favor of the county was vacated.
In its decision, the Circuit Court made several references to the #MeToo movement and the “veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by victims.” The Court noted:
[T]here may be a certain fallacy that underlies the notion that reporting sexual misconduct will end it. Victims do not always view it in this way. Instead they anticipate negative consequences or fear that the harassers will face no reprimand; thus more often than not, victims choose not to report the harassment.
The Third Circuit decision should serve as a cautionary tale to employers. In the time of the #MeToo movement, a victim’s failure to report needs additional proof to be found unreasonable. At least in the Third Circuit, employers might now be less likely to succeed with a Faragher-Ellerth defense at the summary judgment phase.
The #MeToo movement is beginning to shape the law in the sexual harassment arena and only time will tell how other circuits decide to weigh in on this issue. But rather than despair, employers can take action. Review your harassment policy, especially the steps offered to an alleged victim. Is the list of people to whom the employee can complain broad enough? Is someone from every department listed so the employee can feel safe complaining? How about someone from outside of the facility, outside of the company, in HR or maybe in multiple distinct departments – e.g., accounting, operations and sales? If you keep the options available to employees open, maybe the Faragher-Ellerth defense doesn’t have to lose its teeth.
Brody and Associates regularly provides training and counseling on maintaining a harassment free environment and on employment law issues in general. If we can be of assistance in this area in the states where we are licensed, please contact us at info@brodyandassociates.com or 203.454.0560.
