United States: Reexamining Reasonableness: What Employers Should Know About The Third Circuit's Take On The Faragher-Ellerth Defense

Last Updated: July 18 2018
Article by Simone Francis

The Third Circuit Court of Appeals recently issued an opinion in Minarsky v. Susquehanna County, No. 17-2646 (July 3, 2018). The decision, which vacated the entry of summary judgment in favor of an employer that had asserted the Faragher-Ellerth defense to a sexual harassment claim based upon a hostile work environment, provides some important lessons for employers.

Background

Sheri Minarsky began working as a secretary in Susquehanna County’s Department of Veteran’s Affairs in September 2009. Minarsky alleged that shortly thereafter, the department’s former director, to whom she reported, began to engage in unwelcome physical contact with her, including attempting to kiss her on the lips, massage her shoulders, or touch her face. Accordingly to Minarsky, the former director also sent her sexually explicit email messages, called her at home on non-work days and questioned her about personal matters during those discussions, interrogated her about her activities during lunch hours, and engaged in other unpredictable behavior. Minarsky asked the director to discontinue the behavior soon after it started, but he did not do so. At the suggestion of her physician, Minarsky eventually wrote an email to him in July 2013, advising him that his behavior of hugging, touching, and kissing her made her uncomfortable and asking him to stop. Although the director responded that he would do so, the county learned of his conduct from a coworker and friend in whom Minarsky had confided; soon thereafter, the director admitted to the allegations and his employment was terminated.

Minarsky resigned several years later, and she filed a lawsuit in the U.S. District Court for the Middle District of Pennsylvania against the county and the former director. Following discovery, the county moved for summary judgment. The district court entered judgment in favor of the county on Minarsky’s Title VII and state law discrimination claims.

The Third Circuit’s Decision

The Third Circuit vacated the district court’s entry of summary judgment. Examining the first prong of the Faragher-Ellerth defense (whether the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior), the court concluded that although the county had adopted a written anti-harassment policy which was provided to Minarsky—and although the county had reprimanded the director twice for inappropriate conduct towards other female employees and later terminated his employment—a jury could find that the county had not exercised reasonable care to prevent the director’s harassing behavior based upon the existence of a pattern of unwelcome advances towards other women and the placement of Minarsky in a setting where she worked alone with the former director once a week.

The Third Circuit then turned to the second prong of the Faragher-Ellerth defense: whether the harassed employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. The court concluded that disputed issues of fact also existed with respect to whether Minarsky had acted reasonably in failing to take advantage of preventative or corrective opportunities or to avoid harm otherwise. Although it was undisputed that Minarsky had not reported the harassment, the court concluded that a jury could find her silence to be objectively reasonable in light of the specific evidence of circumstances that contributed to Minarsky’s subjective fear of retaliation.

Key Takeaways

The Third Circuit’s decision highlights the increasing challenges that employers face in defending sexual harassment claims. Although the district court found that the county had satisfied the elements of the Faragher-Ellerth defense as a matter of law, the Third Circuit considered a broad range of factors relating to the director’s history of interactions with Minarsky and other women, the employer’s response to reports it received concerning his unwelcome conduct towards other women, and the circumstances that may have influenced Minarsky to remain silent for several years. The court held that disputed issues of fact existed concerning the reasonableness of the county’s efforts to prevent such behavior and the reasonableness of Minarsky’s silence about the former director’s unwelcome conduct.

Beyond the potential impact of this decision in the litigation arena, employers operating within the states that comprise the Third Circuit (Delaware, Pennsylvania, New Jersey, and the U.S. Virgin Islands), as well as those elsewhere, may wish to consider measures that they can take to develop and maintain a workplace culture that promotes reporting, avoids discouraging or prematurely discounting “late” reports, and that includes sufficient safeguards to detect and prevent or otherwise address patterns of unwelcome physical and non-physical behavior. In undergoing an evaluation, employers may consider the following instructive points from the Third Circuit’s decision:

Dissemination of a written policy may not be enough.

Like many employers, the county had adopted a written policy that prohibited workplace harassment, instructed employees to report harassment to a supervisor, and identified alternate channels if the supervisor was the harasser. The county had also distributed its policy to employees—including Minarsky—and obtained a record of receipt.

Reprimanding a supervisor for harassment may not be enough.

Although an appropriate response will depend upon an examination of the relevant circumstances, a reprimand may not be enough. On the two occasions when the county learned that Minarsky’s supervisor had engaged in inappropriate physical contact with other female employees, it verbally reprimanded him. However, these verbal warnings were not documented in his personnel file and there was no follow-up by the county.

Patterns of unwelcome behavior may merit additional attention.

In vacating the entry of judgment in favor of the county, the Third Circuit noted that other women (including individuals designated in the policy as alternate reporting contacts) had been recipients of unwelcome behavior from the supervisor. Although the Third Circuit’s decision does not make clear whether the county knew of all the instances of unwelcome behavior prior to the lawsuit, the court highlighted evidence that the supervisor’s behavior extended to individuals other than Minarsky.

Physically isolated work areas may constitute a risk factor.

One factor that the court considered in assessing the reasonableness of the county’s efforts to prevent harassment and the reasonableness of Minarsky’s extended silence (for nearly four years) was the fact that Minarsky and her boss generally worked in an area situated away from other employees. Although the logistics of some operations may make similar circumstances inevitable, certain work arrangements may also trigger a need to implement additional methods to prevent or detect potential violations of company policy or the law.

Non-physical conduct may be relevant to the reasonableness of a response to harassment.

Policies and training efforts understandably focus on unwelcome conduct based upon an employee’s sex, and it can be more challenging to identify and prevent non-physical interactions that are not of a sexual nature but which impact workplace dynamics. However, in concluding that the reasonableness of Minarsky’s extended silence was an issue for a trier of fact, the Third Circuit took into account her testimony that her supervisor’s behavior was unpredictable and at times “nasty,” that he cautioned her that she could not trust his superiors, and that he told her that her position could be eliminated if she did not appear busy. Although the court stated that a fear of retaliation that is “generalized and unsupported by evidence” does not excuse a failure to report, the Third Circuit’s willingness to consider specific explanations for non-reporting presents a practical challenge for employers that may not know about or appreciate the impact of these interpersonal interactions until after a legal claim is filed.

The public discourse about #MeToo may be influential.

Although acknowledging that “our case precedent has routinely found the passage of time coupled with the failure to take advantage of the employer’s anti-harassment policy to be unreasonable,” the Third Circuit cited media reports highlighting the frequency of sexual harassment and the reasons victims do not report harassment to support its conclusion that “a mere failure to report one’s harassment is not per se unreasonable” and that the “passage of time is just one factor in the analysis.”

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions