A recent Court of Appeals decision from Philadelphia shows that victims of sexual harassment can win discrimination claims even if the victim did not make an official report of the harassment, and even if the employer eventually fired the harasser when it did find out about it. The Court, mindful of the #MeToo “firestorm,” and growing evidence about the extent of both harassment and fear of retaliation, decided that juries, not judges, should decide the key questions of whether the victim’s and employer’s actions were “reasonable.”
Sheri Minarsky began working as a part-time secretary for the Susquehanna County Department of Veterans Affairs in 2009. On Fridays, she worked for Thomas Yadlosky, the former Director of the Department. Soon after Minarsky started this job, Yadlosky began to sexually harass her. Yadlosky attempted to kiss her on the lips before he left each Friday. He approached her from behind and embraced her, “pull[ing] [her] against him.” He “would purportedly massage her shoulders or touch her face. As they worked together, alone, others were seldom present to see what Yadlosky was doing, other than during the holiday season, when Yadlosky asked Minarsky and other female employees to kiss him under mistletoe.”
Yadlosky began to control Minarsky by asking about her “whereabouts during lunch and with whom she was eating. He called her at home under the pretense of a work-related query but proceeded to ask personal questions.” Yadlosky “became hostile if she avoided answering these calls. He sent sexually explicit messages from his work email to Minarsky’s work email, to which Minarsky did not respond.”
When Yadlosky first began his harassment, Minarsky tried to stop him in a joking manner. That failed. Minarsky’s daughter was ill and they depended on her employment to pay medical bills. “She feared speaking up to him in any context, let alone to protest his harassment, because he would react and sometimes become ‘nasty.'” Sylvia Beamer, the Chief County Clerk, twice became aware of Yadlosky’s inappropriate behavior toward other women, and admonished him. Beamer “told him he could face termination if his inappropriate behavior continued. There was no further action or follow-up, nor was any notation or report placed in Yadlosky’s personnel file. Also, once when Beamer was in the Veterans Affairs office, Minarsky saw Yadlosky try to embrace Beamer, but Beamer stopped him and said, ‘Get away from me.'” A female Commissioner testified that Yadlosky attempted to hug her too, and that he put his arm around her, or kissed her on the cheek approximately ten times.
Susquehanna County has an anti-harassment policy. It permits an employee to report harassment to the supervisor, or to the Chief County Clerk or a County Commissioner. Minarsky feared what would happen if she made a report to County administrators because Yadlosky repeatedly warned her not to trust the County Commissioners or Beamer. He told her to look busy or else they would terminate her position. “These warnings, along with the fact that Yadlosky had been reprimanded unsuccessfully for his inappropriate advances toward others,” led Minarsky to avoid reporting Yadlosky.
Minarsky finally “revealed the harassment and its emotional toll on her health to her physician in April of 2013,” about four years after she started work. The doctor “emphasized the need to bring an end to the conduct. She encouraged Minarsky to compose an email to Yadlosky, so she would have some documentation.” Minarsky also told a friendly coworker, and word got around to Beamer who investigated the harassment and fired Yadlosky.
Minarsky filed suit against Susquehanna County and Yadlosky. The district court eventually dismissed that suit because (1) the County took prompt and sufficient action against Yadlosky’s harassment, and (2) Minarsky failed to report the harassment pursuant to the County’s policy.
In 1998, the Supreme Court set out standards for holding employers liable for harassment. In Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, the Court acknowledged the sensitive nature of workplace harassment: “a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character.” “If the harassment resulted in a ‘tangible employment action’ against the employee, then the employer is strictly liable. The Supreme Court has described a tangible employment action as ‘hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'”
However, as in Minarsky’s case, “if the harassed employee suffered no tangible employment action, the employer can avoid liability by asserting the Faragher-Ellerth affirmative defense. 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.”
“The cornerstone of this analysis is reasonableness: the reasonableness of the employer’s preventive and corrective measures, and the reasonableness of the employee’s efforts (or lack thereof) to report misconduct and avoid further harm.” In Minarsky’s case, the Court of Appeals held that the reasonableness of both the County’s and Minarsky’s actions “should be decided by a jury.”
The Court made this unusual observation, proving that judges read newspapers:
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://templatearchive.com/harassment-in-the-workplace-report/. 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).
That Beamer and Warren had personal knowledge of Yadlosky’s harassment, and yet took no documented action to stop it, featured prominently in the Court’s decision that a jury could find their response was unreasonable.
As for Minarsky’s conduct, the Court wanted to clarify that “a mere failure to report one’s harassment is not per se unreasonable.” 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 concern about potential retaliation from reporting her harassment is “well-founded,” and a jury could find that it is “objectively reasonable,” then the court should then leave the issue for the jury to determine at trial. The Court vacated the decision of the district court and returned the case for trial against both the County and Yadlosky.
A previous KCNF blog reviewed two other decisions in harassment cases (Guessous v. Fairview Properties Investments and Smith v. Rock-Tenn Services, Inc.) holding that the determination of reasonableness should be made from the victim’s point of view.
Employees would benefit from understanding how social movements influence the law. The growing demands for accountability for harassers is already pushing the needle toward greater opportunities for victims.
Employers would benefit from appreciating that issuing a policy against harassment is not enough. Employers can face liability if they fail to enforce that policy. They must be proactive in taking prompt and effective action to stop harassment. Even if victims do not complain, employers must get to the bottom of any information they have about workplace harassment and make sure the all employees feel safe and free to speak up.
The Supreme Court has also made clear that these principles are not limited to sexual harassment. Harassment on any basis that violates the law (race, color, national origin, religion, or retaliation) is actionable. Courts also use these same principles in whistleblower cases.