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Employment Law Blog
James Tarquin, P.A
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Is An Employee’s Failure To Report Sexual Harassment Excused By A Fear Of Retaliation?

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An employer’s liability for sexual harassment depends on whether the harasser is a co-worker or a supervisor of the victim.  When the harasser is a supervisor and the harassment culminates in the taking of a tangible employment action against the victim, such as hiring, failing to promote, or a reduction in pay, the employer is strictly liable for the harassment.  When the harasser is a supervisor and the harassment does not culminate in the taking of a tangible employment action against the victim, the employer is liable for the harassment unless it can establish an affirmative defense established by the U.S. Supreme Court in Faragher v. City of Boca Raton, 534 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

Under the Faragher-Elllerth affirmative defense, an employer can avoid liability for supervisor hostile work environment sexual harassment by establishing that: (a) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (b) the victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.  The employer bears the burden of proving both elements of the Faragher-Ellerth affirmative defense.

Failure To Report Harassment & Fear Of Retaliation

Having long represented victims of sexual harassment, our Citrus County, Florida sexual harassment attorneys have learned the sexual harassment victims often do not report incidents of sexual harassment because of fear of retaliation.  Seizing on a victim’s failure to report sexual harassment because of a fear of retaliation, employers attempt to establish the second element of the Faragher-Ellerth affirmative defense by arguing that the victim unreasonably failed to take advantage of corrective opportunities by availing himself or herself to the employer’s anti-harassment policy.  Unfortunately, the overwhelming majority of courts have adopted such employer arguments and held that a generalized fear of retaliation does not excuse a failure to report sexual harassment.

However, courts have also explained that a fear of retaliation that is substantiated by evidence may excuse a victim’s failure to take advantage of the employer’s anti-harassment policy.  In other words, if the victim has evidence that other employees were subjected to retaliation for complaining about sexual harassment, then the victim’s fear of retaliation is reasonable and the failure to report sexual harassment is justified.  Under such circumstances, the victim has not unreasonably failed to take advantage of corrective opportunities and the employer cannot establish the second element of the Faragher-Ellerth affirmative defense. 

Employee Remained Silent Due To Fear Of Retaliation

The recent decision by the U.S. Third Circuit Court of Appeals in Minarsky v. Susquehanna County, 2018 WL 3234243 (3d Cir. July 3, 2018) instructive in showing the type of circumstances where a sexual harassment’s victim’s fear of retaliation is reasonable and the failure to timely report sexual harassment may be justified.  In that case, Sheri Minarsky (Minarsky) brought a sexual harassment lawsuit against her former employer, Susquehanna County (County), pursuant to Title VII of the Civil Rights Act of 1964 (Title VII). 

Minarsky claimed that she was subjected to sexual harassment by her supervisor, Yadlosky, for over three-and-a-half years.  Minarsky alleged that Yadlosky’s sexual harassment included kissing her on the lips, hugging her, messaging her shoulders, touching her face, sending her explicit e-mails, calling her at home on her days off and asking personal questions, and monitoring her whereabouts.  On two occasions during Minarsky’s employment, Yadlosky was verbally reprimanded for inappropriate behavior towards other women.  However, no notation or report of the reprimands was placed in Yadlosky’s personnel file.   

Under the County’s anti-harassment policy, employees were required to report any harassment to their supervisor, or if the supervisor was the source of the harassment, to the Chief County Clerk or a County Commissioner.  During the almost four years that she was sexually harassed by Yadlosky, Minarsky did not report the harassment to the Chief County Clerk or a County Commissioner.  Minarsky testified that she did report the harassment for numerous reasons, including a fear of retaliation, warnings from Yadlosky not to trust the Chief County Clerk or County Commissioners, and her knowledge that Yadlosky had been reprimanded unsuccessfully for inappropriate behavior towards other women.

After almost four years of sexual harassment, Minarsky confided to a friend who was co-worker about Yadlosky’s harassment. When Minarsky’s friend mentioned to another employee about what was happening between Minarsky and Yadlosky, another employee overhead the conversation and reported it to the Chief County Clerk.  The Chief County Clerk then interviewed Minarsky about her allegations.  When Yadlosky admitted the allegations, he was placed on paid administrative leave and then terminated.  Minarsky quit several years later.

A Jury Could Find Employee’s Silence Was Reasonable

The trial court dismissed Minarsky’s sexual harassment claim against the County.  In doing so, the trial court held that the County had established the Faragher-Ellerth affirmative defense to liability for Yadlosky’s sexual harassment.  On the second element of the Faragher-Ellerth affirmative defense, the trial court ruled that Minarsky’s failure to timely report the harassment was unreasonable because “her mistrust came from the very employee” who was harassing her and Minarsky produced no evidence that other employees suffered retaliation after following the County’s anti-harassment policy.  Consequently, the trial court concluded, Minarsky was not justified in failing to timely report Yadlosky’s sexual harassment.  On appeal, the Third Circuit reversed the trial’s court’s decision and reinstated Minarsky’s sexual harassment claim against the County. 

At the outset of its opinion, the Third Circuit observed that courts have consistently held a generalized fear of retaliation that is unsupported by evidence does not excuse a victim’s failure to report sexual harassment in compliance with an employer’s anti-harassment policy.  However, the Third Circuit concluded, when a victim’s “genuinely held, subjective belief of potential retaliation” prevented her from reporting the harassment, “and a jury could find that this belief is objectively reasonable,” it is for the jury to decide, and not a court as a matter of law, whether the employer has proven the second element of the Faragher-Ellerth affirmative defense.

In applying this principle to the facts, the Third Circuit held that because Minarsky “produced several pieces of evidence of her fear that sounding the alarm on her harasser would aggravate her work environment or result in her termination,” a jury could find her fear of retaliation was “objectively reasonable” and her long delay in reporting the harassment justified.  In support of its holding, the Third Circuit pointed to a broad array of evidence produced by Minarsky:  the County knew of Yadlosky inappropriate behavior and “merely slapped him on the wrist”; Yadlosky discouraged Minarsky from using the anti-harassment policy by telling her she could not trust the persons to whom she was required to report the harassment; Yadlosky became “nasty” when Minarsky attempted to assert herself in the workplace which “deepened her fear of defending herself or disclosing Yadlosky misconduct”; and the “aggravating effect of prolonged, agonizing harassment” could serve to explain Minarsky “fear of worsening her situation.”

Free Consultation With Citrus County Sexual Harassment Lawyers   

Based in Ocala, Florida and representing employees throughout Central Florida, we have been fighting for the rights of sexual harassment victims for almost twenty years.  If you have been subjected to sexual harassment at work or have concerns about potential retaliation for reporting sexual harassment, please contact our office for a free consultation with our Citrus County, Florida sexual harassment lawyers.  Our employee rights law firm takes sexual harassment cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover. 

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