“The Times They Are A-Changing”: Can the Employer Affirmative Defense Survive in the #MeToo Era?

Asima J. Ahmad and Anthony B. Haller

Employers grappling with the reverberations of the #MeToo movement have been able to take some solace that, with the right policies and complaint process, they can insulate themselves against liability in sexual harassment cases where the employee does not make a complaint under the internal procedure. That insulation is possible given a well-established and objectively provable legal framework.

What we know…

Where the alleged harassment is by a coworker, if the employee/victim does not complain, there is no liability because the failure to lodge a complaint and allow the employer to investigate objectively avoids any inference of negligence. Essentially, where the employer would not otherwise know of the harassment involving coworkers, it cannot be responsible.

On the other hand, if the harassment is by a supervisor, there is no resulting tangible job action (such as demotion or termination), and the employee does not complain, the employer can assert the affirmative defense established by the Faragher-Ellerth cases decided by the U.S. Supreme Court. Successful assertion of that defense involves the employer showing that it exercised “reasonable care” to prevent workplace harassment and discrimination and that the employee “unreasonably failed” to take advantage of the preventative or corrective opportunities that were in place.

But hold your horses!

A relatively recent decision of the U.S. Court of Appeals for the Third Circuit has upended the conventional wisdom using the lessons of the #MeToo movement to shift the analysis. In Minarsky v. Susquehanna County, 895 F.3d 303 (3d Cir. 2018), the Third Circuit reversed the District Court’s decision which had granted summary judgment in the County’s favor because of the admittedly objective failure of the plaintiff to avail herself of an internal complaint procedure. The District Court held that the plaintiff, an administrative assistant, had acted “unreasonably” by failing to report her supervisor’s harassing behavior. She admitted not doing so but claimed she was afraid to pursue a complaint while she worked for him.

In a footnote, Third Circuit Judge Rendell references the recent history of the #MeToo movement that has brought to light how difficult it can be for victims of sexual harassment to confront their harasser. Often the harasser occupies a position of power and influence and has the ability to retaliate and impact the victim’s job. Recent revelations in high-profile cases, like the Harvey Weinstein debacle, show that fear of retribution can be legitimate and well founded. As a result, Judge Rendell concluded that whether a victim unreasonably fails to pursue a complaint is not solely an objective analysis; rather, there may be good reason, subjectively, for the victim to remain silent. For these reasons, according to Judge Rendell, the question becomes a quintessential issue of fact for the jury to decide, thus precluding a grant of summary judgment.

In the case at hand, the Third Circuit found ample evidence on which a jury could conclude that the plaintiff’s decision not to complain was reasonable, including the way the harasser treated her when she questioned his behavior, the fact that others had complained but the conduct persisted, and her dependency on the job and its income. The Court held that the issue of whether she unreasonably failed to take advantage of the County’s internal complaint procedure was a question for the jury, regardless of the fact that, upon learning of the allegations after the victim resigned, the County investigated the matter and terminated the alleged harasser. On this basis, the Third Circuit reversed the District Court’s entry of summary judgment in the County’s favor, which was based upon a finding that the County met its burden under the Faragher-Ellerth test.

Take this to heart:

The #MeToo movement and related cases have created a new reality for employers. The force of the movement has resulted in a seismic change to the legal landscape. Failure to change with the times will only increase an employer’s exposure. Employers should take a fresh look at their entire approach to the problem of sexual harassment in the workplace (really, for all types of harassment) and find new ways to protect employees and the business, while attempting to prevent such conduct.

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