The #MeToo Movement has not only brought a plethora of sexual misconduct to light, it is now becoming a part of the judiciary’s lexicon in sexual harassment cases.  One such federal case illustrating this movement is the case of Minarsky v. Susquehanna County, et al.

On July 3, 2018 the United States Court of Appeals for the Third Circuit[1] ruled on the case of Minarsky v. Susquehanna County, et al, 17-2646 (Jul. 3, 2018).  In this case, the Plaintiff, Ms. Minarsky, worked for the Susquehanna County in an administrative position.  Ms. Minarsky alleged in her complaint against the County that her supervisor, Mr. Yadlosky, sent her sexually inappropriate emails on various occasions.

The County had a sexual harassment policy directing victims to report harassment; however, Ms. Minarsky did not report the harassment that she’d allegedly suffered.  Instead, Ms. Minarsky resigned and filed a civil lawsuit against the County.

Why These Facts Are Important

Ms. Minarsky’s failure to report the harassment is a significant fact. In 1988, the seminal case of Faragher v. City of Boca Raton, 524 U.S. 775 (1998) provided employers a defense to workplace harassment claims when: 1) the employer could show that it exercised reasonable care to prevent harassment and to promptly correct it when it occurred; and, 2) that the employee failed to use the preventive measures provided by the employer.  Armed with this defense, employers implementing a policy prohibiting harassment could affirmatively defend themselves if the employee failed to report harassment in the workplace.

The Court’s Finding

Despite Ms. Minarsky’s failure to report the harassment, the appellate court held for Ms. Minarsky.  In doing so, the court found Ms. Minarsky’s reasons for not reporting the harassment understandable.  These reasons included: 1) Ms. Minarsky’s need to keep her job due to her daughter’s illness; 2) the veiled threats that she had purportedly received from Mr. Yadlosky; and, 3) the County’s previous failure to stop Mr. Yadlosky’s sexual misconduct.   Relevant to the court’s finding was the County’s knowledge of Mr. Yadlosky’s propensity of grabbing women in the workplace to hug and kiss them and the County’s tepid and insubstantial response to his actions.

How The Court’s Finding Applies to Employers

While courts adjudicating similar cases have found that an employee’s failure to utilize their employer’s anti-harassment policy is unreasonable, even when the employee fears retaliation, the Court’s decision here serves as a call to employers, particularly in light of the #MeToo movement, to take sexual misconduct seriously.   With the eve of a progressive and strengthening movement, employers’ response to sexual misconduct must be swift and material. Employers must show a priority and commitment to preventing and stopping harassment with actions that go beyond policies and investigations.  Employers have to make the employment site safe for all employees or suffer from the tide of change.

[1] The Third Circuit Court of Appeals includes Delaware, New Jersey, the Eastern, Middle and Western Districts of Pennsylvania and the U.S. Virgin Islands.