The Impact of #MeToo is Deeper Than You Think?

Date: November 16, 2018

By: Peter D. Guattery, Esq. 

Under Title VII of the Civil Rights Act, and many similar State civil rights laws, the liability for sexual harassment can vary greatly based on the nature of the claim. The Supreme Court companion cases of Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) set out a standard holding an employer strictly liable for instances of sexual harassment by a supervisor, but left open a window, by way of an affirmative defense, where the employee suffered no tangible adverse employment action as a result. In order to utilize the affirmative defense and avoid liability for the harassment, the burden was on the employer to demonstrate:

(a) that it took reasonable care to “prevent and correct promptly any sexually harassing behavior;” and

(b) that the employee “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm.”

In the recent case of Minarsky v. Susquehanna County, 895 F.3d 303 (3rd Cir. 2018), what has become known as the Faragher-Ellerth defense, entered the #MeToo era, when the U.S. Court of Appeals for the Third Circuit reinstated a claim against Susquehanna County, despite the fact that the employee, Sheri Minarsky, never reported the sexual advances made by her supervisor, which occurred repeatedly over a four year period. The County challenged the claim largely on Minarsky's failure to notify them about her supervisor's conduct. They had a clear policy, and took action against the supervisor when complaints from others led to the supervisor's termination. Minarsky, herself, however, had only told a friend, who told another employee, who in turn told human resources. From the county's perspective, they took prompt action once the particulars of the supervisor's conduct toward Minarsky and others became known, and therefore were protected from the claim.   

For many employers, these may seem like strong facts to support a defense. Susquehanna County had a clear policy in place, which the court found to be reasonable. It clearly defined harassment and provided alternative reporting procedures. Minarsky knew of the policy and the process, but she did not make a complaint. But was the policy effective? The Court of Appeals said a jury should decide.

Multiple female employees had similar interactions with the offending supervisor over the years – unwanted hugging, kissing, massaging of shoulders, sexually explicit emails, and sexual advances. During the holiday season, the supervisor asked Minarsky and other female employees to kiss him under the mistletoe. There was such a strong pattern of pre-existing conduct that the Court of Appeals felt that the number of incidents and the employer's dragged out response to these incidents, for which there was evidence of knowledge on the part of the County, created an issue of fact as to whether the County actually took reasonable measures to protect the employee from the harassment.

Minarsky herself explained that her failure to report the incidents was because the supervisor knew her young daughter was ill and depended on her job to pay medical bills. She feared speaking up to him in any way because he would react and become nasty. In short, she feared retaliation. Minarsky was also aware of a prior reprimand the supervisor received, which had done little to change his behavior. 

In looking at the second prong of the Faragher-Ellerth test, and determine whether Minarsky had acted “unreasonably” in not reporting the conduct, the court turned to #MeToo: 

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. …. 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.  

… Most of all the women who have experienced harassment report that the male harassers faced no consequences.

Id. at 313 n12. The court went on to observe that, in a 2016 report, the EEOC noted that 70% of individuals who may have experienced harassment did not report it. A full 90% who experienced workplace harassment never reported it. The net effect of the court's decision was to send the case back to the District Court to set the case in for trial.  

The obvious lesson from the Minarsky decision is that the most important aspect of any sexual harassment prevention program is not a detailed policy or strong words of “zero tolerance,” though a policy is important. Instead, the promptness and effectiveness of the employer's response will be critical. One might even suggest that it should be the window through which the employer assesses the strength of its entire harassment policy, from how the policy is communicated to how supervisors and employees are trained, who conducts investigations and how, and ultimately, what actions should be taken. 

Susquehanna County was faced with allegations by not just a single employee, but evidence of a persistent and unrelenting pattern of misbehavior by a supervisor who allegedly conducted himself as he pleased given his position and the relative isolation of him and his staff from the main office. The County's problem was not simply that its response to the reported incidents was lacking, but also that it treated its harassment policy as a reactive, rather than proactive, tool for addressing complaints. If anything, #MeToo suggests that this kind of HR practice is now out of date. Creating a work environment that promotes respect, and encourages trust requires an active effort by employers to understand and respond to employee concerns. Implementing a policy with those specific goals in mind will ultimately be an employer's most effective defense against such claims.

Whiteford, Taylor & Preston can assist you in assessing your company's HR policies and practices, ensuring they are up-to-date, and guiding you through proper investigation practices.