An employer has a legal duty to promptly and thoroughly investigate any complaints of discrimination, sexual harassment, or retaliation. Under Title VII and the New Jersey Law Against Discrimination, (LAD), employers may often avoid liability for harassment that does not involve an adverse employment action if the employer can demonstrate that (1) the employer takes reasonable steps to prevent and correct sexual harassment or discrimination; and (2) the employee unreasonably failed to take advantage of the employer’s preventive or corrective measures. This is often referred to as the Faragher/Ellerth defense.
However, in the landmark case Minarsky v. Susquehanna County, the Third Circuit Court ruled that a plaintiff secretary for the Susquehanna Department of Veterans Affairs could pursue sexual harassment and discrimination claims, notwithstanding the fact that she never reported her former boss’s alleged sexual advances.
Ms. Minarsky endured unwanted sexual advances for years. Her boss would try to kiss her on the lips, embrace her, massage her shoulders, call her on her personal time to ask her questions, and sent sexually explicit messages to her.
Minarsky did not report her boss’s conduct because she feared termination if she complained about his alleged conduct. She testified at deposition that she needed income to care for an ill child.
Because of his behavior toward other women, the supervisor was eventually reprimanded, and then fired, even though Minarsky never made a formal complaint as set forth in her employer’s workplace policy. Ms. Minarsky did complain to a coworker about her experiences, albeit a number of years after the fact.
Lower Court Decision Reversed
The Third Circuit Court reversed the lower court’s decision to dismiss the case, finding that there were questions of fact that should have been sent to a jury as to whether (1) the County exercised reasonable care to prevent and correct sexual harassment; and (2) whether Ms. Minarsky acted unreasonably in failing to file a formal complaint.
The Court also addressed the growing #MeToo movement, and the fear that victims of sexual harassment have about being fired for speaking up about harassment. In a footnote, the Court noted that companies and government agencies have adopted policies aimed at addressing sexual harassment in the workplace, but that those efforts may not be enough to stop harassment.
The Court went on to state that: “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.”
This case involved unique facts, and we strongly encourage all employees experiencing harassment or discrimination in the workplace to immediately report such working conditions. For employers, we caution that the cost and risk of litigation, even if you have anti-harassment policies, is growing.
For this reason, we encourage employers to be proactive with updating their policies and procedures, and provide anti-harassment training. Preventive measures can go a long way in minimizing risk of litigation, low morale in the workplace, and bad publicity.
Atlantic City Employment Lawyers at Levine Staller Represent Employees’ and Employers’ Harassment Claims
Whether you’re an employer with concerns about sexual harassment claims, or an employee experiencing sexual harassment, the experienced Atlantic City employment lawyers at Levine, Staller, Sklar, Chan & Brown, P.A. are here to assist you. Our offices are conveniently located in Atlantic City, New Jersey, to handle employment related matters throughout Atlantic County and the state of New Jersey. To schedule your initial confidential consultation today, call us at 609-348-1300 or submit an online inquiry form.