Faragher-Ellerth, #MeToo, and the Court of Public Opinion

Published: July 10, 2018

Last week, the Third Circuit released an opinion in Minarsky v. Susquehanna County, et al., in which it reversed the district court’s award of summary judgment to Susquehanna County and remanded the case for a jury trial on the merits.  What is significant about this opinion is the impact that the #MeToo movement has seemingly had on the decision.  In a page-long footnote, the Court discusses the #MeToo movement, the pervasiveness of sexual harassment in the workplace, and comments on why sexual harassment victims may not, even with proper mechanisms in place, reasonably be willing to report harassment. For twenty years, employers faced with hostile work environment sexual harassment claims (where no adverse action has been taken against the victim) have had in their quiver the Faragher-Ellerth defense.  The defense provides that an employer will not be held liable for sexual harassment where the employer took reasonable care to avoid harassment (by having policies and trainings) and to eliminate it when it occurred, and where the victim failed to take advantage of the safeguards and to prevent harm to herself/himself by reporting the inappropriate conduct.

In Minarsky, the lower court dismissed the case against Susquehanna County, finding that the Faragher-Ellerth defense applied to the case because (1) the County had an anti-harassment policy in place, (2) Minarsky never reported the harassment, and (3) when the County learned of the offending employee’s behavior (from Minarsky’s co-worker), it fired him.

The Third Circuit Court of Appeals reversed the lower court and remanded the case for a jury trial because it found that the lower court could not find, on the record before it, that the employer had acted reasonably in quelling workplace harassment or that Minarsky acted unreasonably in failing to report the pervasive sexual harassment after enduring it for four years. In support of its conclusion that Minarsky’s failure to report the harassment was not, as a matter of law, unreasonable, the Court noted:

This appeal comes to us in the midst of national news regarding a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by the victims. It has come to light, years later, that people in positions of power and celebrity have exploited their authority to make unwanted sexual advances. In many such instances, the harasser wielded control over the harassed individual’s employment or work environment. In nearly all of the instances, the victims asserted a plausible fear of serious adverse consequences had they spoken up at the time that the conduct occurred. While the policy underlying Faragher-Ellerth places the onus on the harassed employee to report her harasser, and would fault her for not calling out this conduct so as to prevent it, a jury could conclude that the employee’s non-reporting was understandable, perhaps even reasonable. That is, there 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.

Recent news articles report that studies have shown that not only is sex-based harassment in the workplace pervasive, but also the failure to report is widespread. Nearly one-third of American women have experienced unwanted sexual advances from male coworkers, and nearly a quarter of American women have experienced such advances from men who had influence over the conditions of their employment, according to an ABC News/Washington Post poll from October of 2017. Most all of the women who experienced harassment report that the male harassers faced no consequences. ABC News/Washington Post, Unwanted Sexual Advances: Not Just a Hollywood Story (Oct. 17, 2017), http://www.langerresearch.com/wp-content/uploads/ 1192a1SexualHarassment.pdf.

Additionally, three out of four women who have been harassed fail to report it. A 2016 Equal Employment Opportunity Commission (EEOC) Select Task Force study found that approximately 75 percent of those who experienced harassment never reported it or filed a complaint, but instead would “avoid the harasser, deny or downplay the gravity of the situation, or attempt to ignore, forget, or endure the behavior.” EEOC Select Task Force, Harassment in the Workplace, at v (June 2016), https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf. Those employees who faced harassing behavior did not report this experience “because they fear[ed] disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.” Id.; see also Stefanie Johnson, et al., Why We Fail to Report Sexual Harassment, Harvard Business Review (Oct. 4, 2016), http://hbr.org/2016/10/why-we-fail-to-report-sexual-harassment (women do not report harassment because of retaliation fears, the bystander effect, and male-dominated work environments)

Given the Court’s footnote and the commentary within its decision, it is less likely that the courts in the Third Circuit are going to be willing to grant summary judgment to employers in sexual harassment cases where victims fail to report. Instead, courts will be more likely to allow a jury to decide whether the parties acted reasonably.

The opinion also contains some other lessons for employers. First, it is not enough to have an anti-harassment policy and a procedure for reporting inappropriate behavior.  You must do what you can to foster a culture where employees feel empowered to report what they are experiencing or seeing.  Second, (and you have all heard this before) you must train your supervisors on how to recognize harassment and how to deal with it.  In this case, Minarsky’s supervisor had experienced the offender’s unwanted advances, too, but had done nothing to report them, even after she had disciplined him for similar behavior toward two other female employees.  Third, after you discipline an employee for inappropriate behavior (short of termination), employ a two strikes and you are out rule.  The appellate court, in reversing the lower court, found significant to its decision that the offender had been disciplined several times for the same pattern of behavior.

While it is true that sexual harassment law has not changed, certainly the way the Courts and the court of public opinion has and will continue to evolve in the coming months and years. This decision is just the beginning of what is to come.

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