Dive Brief:

• An employee's failure to report sexual harassment for a number of years was not, on the face of it, unreasonable and her lawsuit can be sent to a jury, the 3rd U.S. Circuit Court of Appeals determined in Minarsky v. Susquehanna County; Thomas Yadlosky, Jr., No. 17-2646 (3rd Cir., July 3, 2018).
• Sheri Minarsky was a part-time secretary for Susquehanna County's Department of Veterans Affairs. She worked one day a week for Thomas Yadlosky. Minarsky, in filing suit, alleged that Yadlosky made unwanted sexual advances to her for years. She said she never reported his conduct because she needed the job to pay for her daughter's cancer treatment and feared "speaking up to him" because of the man's temper. She also said Yadlosky had warned her not to trust the administrators to whom the VA's harassment policy dictated she report. Still, Yadlosky was warned twice to stop his allegedly inappropriate behavior by two supervisors who witnessed it against other women. He was fired after "the persistent nature of his behavior toward Minarsky came to light." Minarsky sued and a district court granted summary judgment for the county, finding that it had exercised reasonable care to prevent and correct promptly the behavior and that Minarsky unreasonably failed to take advantage of the employer's safeguards.
• On appeal, however, the 3rd Circuit disagreed. A jury could find that Minarsky was prevented from reporting Yadlosky's behavior by her "legitimate fear of the possible consequences of doing so," it said. The court mentioned recent news reports covering "a veritable firestorm of allegations of rampant sexual misconduct" that had not been reported for years by victims who feared serious adverse consequences. The court said that while an employee's "generalized and unsupported fear of retaliation is insufficient to explain a long delay in reporting sexual harassment," Minarsky offered several legitimate reasons that a jury could find reasonable: her fear of Yadlosky's hostility on a day-to-day basis and future retaliation, especially considering the perceived futility of reporting because others seemingly knew of Yadlosky’s conduct.

Dive Insight:

A reporting mechanism and remedial action might not be enough anymore, at least in the 3rd Circuit, which covers Delaware, New Jersey and Pennsylvania.

"Minarsky portends a significant change in the approach to be taken by district courts in the Third Circuit with regard to employer liability for supervisors' sexual harassment of subordinate employees. Indeed, Minarsky effectively offers employees a road map to a jury on this issue," Cozen O'Connor attorneys wrote for the firm. Because employees can now avoid summary judgment by offering evidence that they were afraid to report harassment, "Minarsky makes it significantly less likely that district courts will grant summary judgment to employers under the Faragher-Ellerth affirmative defense," they said.

There are, however, affirmative steps employers can take to prevent such claims. "Employers must recognize the need to carry out regular training related to their anti-harassment policies and specifically address the issues of non-retaliation and fear of coming forward," the Cozen attorneys wrote.