Harassment Claim Advances Despite Failure to Report Misconduct

An employee’s sexual harassment claim against her former employer could proceed to trial, even though she did not report the alleged conduct to management during her tenure, the 3rd U.S. Circuit Court of Appeals decided. Other employees did report incidents of harassment by the alleged harasser, however.

The plaintiff began her employment with Susquehanna County, Pa., in 2009 as a part-time secretary in its Department of Veterans Affairs, working Mondays, Wednesdays and Fridays. On Fridays, she worked with the county’s director of veterans affairs in an office space located separate and apart from other employees. Upon beginning her employment, the plaintiff alleged, the director engaged in a pattern of inappropriate behavior, including attempting to kiss her on the lips, embracing her from behind, and massaging her shoulders and touching her face. He also allegedly sent sexually explicit e-mails to her and asked her about where and with whom she took lunch breaks. The plaintiff alleged that his harassment became progressively worse over time.

The plaintiff was not the only target of the director’s alleged harassing behavior. After two incidents of misconduct directed toward other employees were reported, the director’s supervisor verbally reprimanded him. However, after both incidents, there was no further action or follow-up, nor was any notation or report placed in the director’s personnel file.

Notably, the plaintiff became aware of one of these instances, as well as of the reprimand issued to the director. She also observed the director asking other female employees, in addition to herself, to kiss him under the mistletoe during the holiday season every year. The plaintiff did not file a complaint against the director while she was employed by the county, claiming that she feared retaliation and did not think such a complaint would do any good, given that management knew of his conduct and it nevertheless continued.

Following her resignation, the plaintiff filed suit against the district court seeking to hold it vicariously liable for the director’s alleged conduct.

The county filed a motion for summary judgment, relying on the Faragher-Ellerth defense. Under this affirmative defense, named after two U.S. Supreme Court cases decided in 1998, when there is no tangible employment action (such as firing or failing to promote) taken against a plaintiff, an employer can avoid vicarious liability for the sexually harassing conduct of an employee if it can establish that:

• It exercised reasonable care to prevent and address harassment.
• The plaintiff failed to act in a reasonable manner to take advantage of such preventive measures.

The district court agreed with the county that it had established this defense, reasoning that the plaintiff’s failure to report the harassment was unreasonable. The district court dismissed the plaintiff’s harassment claim against the county before trial. The plaintiff appealed the dismissal to the 3rd Circuit.

In reversing the dismissal, the appeals court analyzed whether the county’s anti-harassment policy was reasonable as a matter of law. In light of the director’s prior inappropriate conduct, the court reasoned that “county officials were faced with indicators that [his] behavior formed a pattern of conduct, as opposed to mere stray incidents, yet they seemingly turned a blind eye toward [his] harassment.” Thus, the court concluded that a jury should make the factual determination as to whether the county “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.”

As for whether the plaintiff failed to act in a reasonable manner by remaining silent, the court also held that “a jury could find that she did not act unreasonably under the circumstances.” Although the court acknowledged that a generalized and unsupported fear of retaliation may be insufficient to explain a plaintiff’s failure to report harassing conduct, the facts as alleged in the plaintiff’s case were more substantive. Specifically, she pointed to her fear of termination, as well as her belief that reporting the director’s misconduct would be futile, considering that others were aware of it and yet it continued.

The court concluded that a jury should decide the viability of the county’s defense against liability for the director’s actions.

Minarsky v. Susquehanna County, 3rd Cir., No. 17-2646 (July 3, 2018).

Professional Pointer: Well-drafted policies and procedures are a critical part of preventing harassing, discriminatory and inappropriate conduct in the workplace. Equally important, however, is ensuring that management follows such procedures and ensures that time and effort is taken to appropriately discipline employees violating such policies and to create corresponding documentation of such disciplinary action.