Title VII sex harassment law has persisted over the decades to place the onus on the victim to report the violation through the employer's anti-harassment policy, and - failing in that step - most courts find no employer liability. But the Third Circuit today issues an opinion that takes a step away from that stance, holding that there can be a genuine dispute about liability for supervisor harassment even when there was no complaint to the employer at all.
Minarsky v. Susquehanna Cty., No. 17-2646 (3d Cir. July 3, 2018): Minarsky worked as a secretary, three days a week, for defendant Yadlosky, the former Director of Susquehanna County's Department of Veterans Affairs. She alleged that Yadlosky both physically and verbally harassed her: he would "attempt to kiss her on the lips before he left each Friday"; "approach her from behind and embrace her, 'pull[ing] [her] against him'"; "massage her shoulders or touch her face"; question her about her whereabouts inappropriately; call her at home; and send sexually explicit emails. Such events allegedly occurred regularly every week.
Although the events described were not witnessed by others, "Yadlosky asked Minarsky and other female employees to kiss him under mistletoe" in the presence of supervisors.
Yadlosky's boss, Beamer (the Chief County Clerk), witnessed incidents where Yadlosky harassed other women employees. Beamer "verbally reprimanded Yadlosky" twice and warned that "he could face termination if his inappropriate behavior continued." Nevertheless, there was reportedly "no further action or follow-up, nor was any notation or report placed in Yadlosky's personnel file."
Although the office had a formal anti-harassment policy, Minarsky did not once, in four years, report the harassment.
"Minarsky alleges that she feared elevating the claims to County administrators, because Yadlosky repeatedly warned her not to trust the County Commissioners or Beamer. She claims that he would often tell her to look busy or else they would terminate her position. These warnings, Minarsky contends, along with the fact that Yadlosky had been reprimanded unsuccessfully for his inappropriate advances toward others, prevented her from reporting Yadlosky."
She finally, on urging of her doctor, wrote an email directly to Yadlosky telling him how "uncomfortable" it made her "when you hug, touch and kiss me. I don't think this is appropriate at work, and would like you to stop doing it." She also informed a co-worker about the harassment ... which conversation was overheard and communicated to Beamer. Beamer then obtained authority from the County Commissioners, and fired Yadlosky.
In Title VII and state law claims against the county, Minarsky alleged (among other things) a hostile work environment by a supervisor. The district court granted summary judgment, holding that the county made out a Faragher/Ellerth defense as a matter of law.
The Third Circuit reverses, holding that the employee presented a genuine dispute of material fact on both elements of the affirmative defense.
The first element of the defense is the "that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior," typically in the form of a formal anti-harassment policy supported by a human-resources or other executive. Here, the county asserted that its "policy prohibited harassment in the workplace, directed employees to report any harassment to a supervisor, and provided that an employee 'may' report to the Chief Clerk or a County Commissioner if the supervisor was the source of harassment."
The panel holds that the county did not conclusively establish a reasonable policy. It came to light that Yadlosky had not only allegedly harassed the plaintiff and two co-workers - he had even allegedly made physical advances on Beamer (the designated reported for harassment) and a woman County Commissioner (as many as ten times). "Thus, County officials were faced with indicators that Yadlosky's behavior formed a pattern of conduct, as opposed to mere stray incidents, yet they seemingly turned a blind eye toward Yadlosky's harassment." It limited its response to verbal reprimands until, when it became unbearable, he was finally fired. Thus, it was up to a jury to weigh the reasonableness of the county's response.
The panel also holds that there was a genuine dispute of material fact on the second element of the defense, that the employee unreasonably failed to avail herself of the county's policy. It gave five reasons why.
"First, the particular nature of Minarsky's working relationship with Yadlosky complicated the situation. They worked alone one day each week, away from others, and on other days he continued to monitor her, ostensibly utilizing his control over her work environment to harass her."
"Second, when Minarsky attempted to assert herself in the workplace, she alleges that Yadlosky became 'nasty,' which deepened her fear of defending herself or disclosing Yadlosky's misconduct."
"Third, although Minarsky's fear of retaliation was subjective, we disagree with the District Court's view that it was clearly unfounded. Yadlosky discouraged her from using the anti-harassment policy by underscoring that she could not trust the Commissioners or the Chief Clerk-those to whom she would report the harassment. He warned her that they might 'get rid' of Minarsky and her job, which she alleged 'made it very hard for [her] to think of going to them.'"
"Fourth, Minarsky discovered that the County had known of Yadlosky's behavior and merely slapped him on the wrist, without more-bolstering Minarsky's claim that she feared the County would ignore any report she made."
"Fifth, a reasonable jury could consider the pernicious nature of the harassment compounded with its frequency and duration to contextualize Minarsky's actions. Minarsky endured over three-and-a-half years of being kissed on the lips, touched, and embraced by her boss, without her consent, all while he sent her explicit emails and monitored her whereabouts .... Rather than view this merely as Minarsky's idle delay in reporting, a jury could consider the aggravating effect of prolonged, agonizing harassment as a way to credit Minarsky's fear of worsening her situation."
The opinion includes this footnote, as well, both reflective of this era and of a possible shift in the law:
"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."
Employee advocates in this area ought to rally behind this language, which portends a change in the way that harassment cases should be adjudicated. The governing assumption for decades has been that women must always report the harassment ... putting them in the dilemma of losing their claims or losing their jobs. The assumption is outmoded, was probably never right to begin with, and must be brought up-to-date.