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Employees’ Failure to Report Harassment May Not Prevent Employer Liability

In the wake of heightened focus on sexual harassment in the workplace, employers may find it more difficult to have even weak harassment cases dismissed before trial. This proved to be the case in Minarsky v. Susquehanna County, where a federal appeals court ruled that an employee’s failure to utilize her employer’s harassment reporting procedures was reasonable and did not prevent the employer from potentially being liable for years-long harassment. FN1

In sexual harassment lawsuits, employees must prove both that actionable harassment occurred (that is, the conduct at issue was based on sex, sufficiently severe or pervasive, and hostile from both an objective and subjective standpoint), and that the harassment can be imputed to the employer.FN2 With regard to whether the employer may be held liable for harassing conduct, courts hold that in many cases, an employer can avoid liability for a supervisor’s misconduct if (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. FN3

In Minarsky, the court overturned a summary judgment ruling in favor of the employer despite the fact the employer had an anti-harassment policy and the employee failed to complain about harassment over several years. The court held that “a mere failure to report one’s harassment is not per se unreasonable.” FN2

In Minarsky, a woman alleged that she was routinely groped and harassed by her direct supervisor for four years, but she never complained to management or human resources, despite her employer’s anti-harassment policy. In a departure from precedent, the Third Circuit reasoned that a jury could find that the woman’s failure to report was reasonable under the circumstances due to her fear of retaliation, her financial dependency on her job, and her perceived futility of reported the harassment because the harasser was known to make inappropriate comments to others. FN4 In a footnote, the court noted the recent national news regarding the “firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by the victims,” arguing that there may be a certain fallacy that “reporting misconduct will end it.” FN5

 Practical Takeaway

  Proof of a functioning anti-harassment policy and reporting system, and proof of an employee’s failure to utilize such system might not prevent employer liability. In some circumstances, the reasonableness of an employee’s failure to report will be left to a jury to decide. For these reasons, companies may benefit by further training management to identify and immediately investigate and act on harassment.

Footnotes:

FN1:   See Minarsky v. Susquehanna County, 895 F.3d 303, 314 (3d Cir. 2018), available at https://www.leagle.com/decision/infco20180703073. The Third Circuit Court of Appeals considers appeals from federal courts in Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands.

FN2:   For a detailed explanation of the requirements of a harassment claim, see http://www.rockymountainemployersblog.com/blog/2017/11/30/guidance-for-employers-in-the-wake-of-the-metoo-movement.

FN3:   Id. at 310-311. This is the so-called Faragher-Ellerth defense.

FN4:   Id. at 315-16.

FN5:   Id. at 313 n.12.