It’s the most important employment law decision of 2018

Minarsky v. Susquehanna County (opinion here) is a sexual harassment case. And there’s a lot to discuss. But the biggest takeaway is that any subsequent employer-defendant asserting a Faragher/Ellerth defense in the Third Circuit will find it very difficult to obtain summary judgment on any hostile work environment claim.

I planned to write about the Third Circuit’s July 3 decision sooner. However, so many of you were off from work last week. Plus, my friend, David Koller, who represents Ms. Minarksy, has been swapping emails with me about the case. We’re putting the finishing touches on that dialogue, which I plan to post tomorrow.

Ok, let’s unpack this. First, the facts.

Ms. Minarsky went through hell for several years working for her employer.

Here’s how Judge Rendell summarized it:

Thomas Yadlosky, the former Director of Susquehanna County’s Department of Veterans Affairs, made unwanted sexual advances toward his part-time secretary, Sheri Minarsky, for years. She never reported this conduct and explained in her deposition the reasons she did not do so. Although Yadlosky was warned twice to stop his inappropriate behavior, it was to no avail. The County ultimately terminated Yadlosky when the persistent nature of his behavior toward Minarsky came to light.

And here are some of the details from the opinion and as Ms. Minarky alleges:

  • Yadlosky tried to kiss Minarsky on the lips every Friday and would approach her from behind, embrace her, and pull her against him.
  • Yadlosky would purportedly massage Minarsky’s shoulders or touch her face.
  • Yadlosky called Minarsky at home on her days off under the pretense of a work-related query but proceeded to ask personal questions.
  • Yadlosky sent sexually explicit messages from his work email to Minarsky’s work email, to which Minarsky did not respond.
  • Indeed, Ms. Minarksy did not welcome any of this behavior.
  • And since they worked together in an isolated part of the building, others were seldom present to observe Yadlosky’s conduct — other than during the holiday season each year, when Yadlosky asked Minarsky and other female employees to kiss him under mistletoe.

Over time, it got worse:

Ms. Minarsky alleges that the harassment intensified as time passed. When the harassment first began, she mildly and jokingly told him to stop. He did not. She claims that Yadlosky knew that her young daughter was ill and thus knew Minarsky depended on her employment to pay medical bills. She states that she feared speaking up to him in any context, let alone to protest his harassment, because he would react and sometimes become “nasty.”

The defendant knew about Yadlosky’s behavior but didn’t do much to stop it.

The employer had a sexual harassment policy. That policy prohibited the type of behavior of which Yadlosky was accused. And, as you’d expect, the policy encouraged victims to report harassment.

Except, Ms. Minarsky’s supervisor, the Chief County Clerk, knew that Yadlosky had engaged in inappropriate behavior with other women. She reprimanded Yadlosky twice, but the behavior continued. Even the County Commissioner knew about Yadlosky’s bad behavior.

And it continued.

Ms. Minarsky learned about one of the reprimands and how other women had similar experiences with Yadlosky. She felt hopeless. And, to make matters worse, Yadlosky discouraged her from complaining. Here’s how the Court describes it:

During the four years Minarsky avers that she was harassed by Yadlosky, she did not report this harassment to either Beamer, the Chief County Clerk, or any of the County Commissioners. 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.

Yadlosky’s Termination

Finally, Ms. Minarsky’s doctor encouraged her to report the harassment to avoid having her mental health continue its spiral downward. She tried to confront Yadlosky via email. But, it was only after another supervisor overheard Ms. Minarsky confiding in a friend that the matter was elevated. A sequence of events led to Yadlosky’s termination of employment:

At first, Minarsky objected, for fear of losing her job. But Beamer had already been notified, and she interviewed Minarsky about her allegations within a few days. Beamer informed the County Commissioners, who agreed that Yadlosky should be terminated. The next day, Beamer interviewed Yadlosky. When he admitted to the allegations, Yadlosky was immediately placed on paid administrative leave, and then terminated. The County then hired a Human Resources Director to oversee personnel issues.

The Faragher/Ellerth Defense

In a hostile work environment case, even if the plaintiff establishes that her supervisor sexually harassed her, the employer has an affirmative defense as long as it hasn’t already taken some kind of tangible employment action against the plaintiff (e.g., fired her). This is the Faragher/Ellerth defense. And it goes like this:

The employer must show “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

Here, the defendant argued that its employee handbook and quick response to Ms. Minarsky’s complaint satisfied the first prong. It further argued that Ms. Minarsky waited too long to complain; that is, her delay was unreasonable.

The Faragher/Ellerth defense can fail even if a plaintiff waits four years to complain

As to the first element of the Faragher/Ellerth defense, the defendant hardly convinced the Court that the anti-harassment policy was effective:

Knowing of his behavior, and knowing that Minarsky worked alone with Yadlosky every Friday, should someone have ensured that she was not being victimized? Was his termination not so much a reflection of the policy’s effectiveness, but rather, did it evidence the County’s exasperation, much like the straw that broke the camel’s back? We do not answer thesequestions, but conclude that there exists enough of a dispute of material fact, and thus a jury should judge all of the facts as to whether the County “exercised reasonable care to prevent and correct promptly any sexually harassing behavior…”

As to the second element and the time that passed between the onset of the harassment to when Minarsky complained, the Court concluded that a jury should determine whether Ms. Minarsky unreasonably delayed:

Although we have often found that a plaintiff’s outright failure to report persistent sexual harassment is unreasonable as a matter of law, particularly when the opportunity to make such complaints exists, we write to clarify that a mere failure to report one’s harassment is not per se unreasonable. Moreover, the passage of time is just one factor in the analysis. Workplace sexual harassment is highly circumstance-specific, and thus the reasonableness of a plaintiff’s actions is a paradigmatic question for the jury, in certain cases. If a plaintiff’s genuinely held, subjective belief of potential retaliation from reporting her harassment appears to be well-founded, and a jury could find that this belief is objectively reasonable, the trial court should not find that the defendant has proven the second Faragher-Ellerth element as a matter of law. Instead, the court should leave the issue for the jury to determine at trial.

The Court addresses #MeToo too.

I generally skip footnotes in judicial opinions. But, footnote 12 is, well, just wow. Here it is:

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/rep ort.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).

A few takeaways.

I know I’m approaching 2000 words. Thanks for sticking with me. I’ll wrap this up for now with a final thought until tomorrow’s conversation with David Koller. That is, Ms. Minarsky’s case involves an extreme set of facts. Nonetheless, Judge Rendell’s opinion will offer a strong foothold for plaintiffs in subsequent Faragher/Ellerth cases to get to a jury. Anecdotally, even before this decision, plaintiffs’ counsel seem more aggressive pre-litigation given the specter of bad press for an employer from a #MeToo story. Now, after Minarsky, employers are staring at more defense costs and bigger overall exposure from the increased risk of a jury trial. Plus, although this is a sexual harassment case, presumably, its reasoning may apply to any hostile work environment based on any protected class.

Friends, maybe you’ve been hitting the snooze bar on the impact that #MeToo could have on your workplace. But, if this isn’t your final wakeup call to get proactive with some education, training, and overall introspection, trust me, you will eventually get that wake-up call. It will come in the form of the hostile work environment claim that you’ll have to litigate, with all the bad press that comes with it.

“Doing What’s Right – Not Just What’s Legal”