It just got harder for Pennsylvania employers to rely on an employee’s failure to report harassment that started a long time ago
This week, the Pennsylvania federal appeals court, the United States Court of Appeals for the Third Circuit, made it harder for employers to rely on the passage of time and an employee’s failure to report sexual harassment by a supervisor as a defense to liability that can resolve a harassment claim early in litigation, specifically where an employee believes that reporting the harassment could lead to “potential retaliation” and a jury could find the employee was reasonable in believing that. See, Minarsky v. Susquehanna County, No. 17-2646 (3d. Cir. July 3, 2018).
Prior to this, the Third Circuit had “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.” Since it was a “matter of law,” an employer could often rely on these facts – failure to report persistent harassment that started a long time ago despite being aware of the employer’s complaint procedure – as a defense to obtain early dismissal of a harassment claim. However, in Minarsky, the Court clarified that “a mere failure to report one’s harassment is not per se unreasonable. . . [and] the passage of time is just one factor in the analysis” when determining whether employers can utilize the Faragher-Ellerth affirmative defense.
An employer may invoke the Faragher-Ellerth affirmative defense where an employee has experienced workplace harassment that did not result in a tangible employment action (such as hiring, firing, or failing to promote). In these instances, the employer can avoid liability if it can show that it used reasonable care to prevent and correct the harassing behavior and that the employee unreasonably failed to take advantage of preventative or corrective opportunities (such as failing to utilize the employer’s complaint procedure). When it comes to this defense, reasonableness is the defining factor for both the employer and employee. If the employer acted reasonably (by having a complaint procedure, properly responding to harassment concerns, and training its employees) and an employee acted unreasonably (by unreasonably failing to report the harassment), the employer may utilize the defense.
In Minarsky, the employer had a complaint procedure, the employee was aware of the complaint procedure, and the employee did not utilize the procedure. Instead, the employee endured years of sexual gestures and innuendo from her supervisor before her concerns were finally reported. The employer tried to obtain dismissal based on the employee’s failure to act reasonably – in other words, arguing that the employee unreasonably delayed in reporting the harassment. Departing somewhat from prior decisions, the Court found that the employee’s failure to report was not legally sufficient to warrant dismissal of the employee’s claims early in the case. Instead, the Court determined, a jury could find that the employee acted reasonably in not reporting the conduct. The Court specifically cited the recent #MeToo movement as support for its position that standards regarding workplace harassment are changing.
As always, contact MEA’s Employer’s Hotline or Member Legal Services for questions or guidance on your company’s compliance with harassment prevention requirements.
Ciana Williams, Esq., SPHR
MidAtlantic Employers’ Association
*This Alert is provided for general informational purposes only and does not constitute legal advice.