Third Circuit Applies #MeToo to Faragher-Ellerth

Third Circuit Applies #MeToo to Faragher-Ellerth

July 19, 2018

On July 3, 2018, the Third Circuit issued an opinion in Minarsky v. Susquehanna County, et al. overturning a district court's granting of summary judgment to an employer against an employee's sexual harassment claim under the Faragher-Ellerth defense.  Faragher-Ellerth is an affirmative defense for employers to argue that they are not vicariously liable for sexual harassment that takes place in the workplace.  Under Faragher-Ellerth, an employer must traditionally show that the employer exercised reasonable care to prevent and promptly correct sexually harassing behavior in the workplace and that the plaintiff employee unreasonably failed to take preventive or corrective opportunities provided by the employer.   In overturning the granting of summary judgment, the Third Circuit applied the recent #metoo trend to the second prong of Faragher-Ellerth and called doubt onto whether court’s ought to hold victims of sexual assault without remedy for their unwillingness or inability to stop their own harassment.

The plaintiff in Minarsky, a secretary, alleged that she was the victim of a pattern of sexual harassment from her supervisor for nearly four years.  The same supervisor received numerus warnings for inappropriate behavior towards other female employees, but the plaintiff never formally reported the conduct.  In her deposition, plaintiff explained that she did not report the harassment because she feared retaliation from her supervisor with whom she frequently worked alone, and that she needed the income from her job to take care of a sick child and did not want to risk losing it.  Finding this unpersuasive, the district court held the employer did not have vicarious liability for the harassing conduct of plaintiff’s supervisor in large part because plaintiff failed to take mitigating action.

In overturning summary judgment, the Third Circuit held that whether the plaintiff's actions towards her harassing supervisor were reasonable or sufficient needed to be determined by a jury.  In reaching this conclusion, the Court noted that "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 victims."  It went on to note that "in nearly all of the instances, the victims asserted a plausible fear of serious adverse consequences had they spoken up at the time," and it referenced reports that "not only is sex-based harassment in the workplace pervasive, but also the failure to report is widespread."  Observing that Faragher-Ellerth "places the onus on the harassed employee to report, and would fault her for not calling out this conduct so as to prevent it,” the Court reasoned that “a jury could conclude that the employee’s non-reporting was understandable, perhaps even reasonable."

In light of Minarsky, the #metoo movement and placing onus on victims to stop harassment comes full force against the long standing application of the Faragher-Ellerth defense.  In the Third Circuit, employers seem less likely to succeed on the second prong of this defense at the dispositive motion stage.  We can only wait to see whether more circuits will adopt a similar approach, and in the long run whether the Supreme Court feels the need to weigh the new movement against the old law.