Labor & Employment Law Daily Failure to report harassment may have been reasonable where employer turned blind eye to past complaints
Tuesday, July 10, 2018

Failure to report harassment may have been reasonable where employer turned blind eye to past complaints

By Nicole D. Prysby, J.D.

Because fact questions existed as to whether a secretary reasonably failed to avail herself of her employer’s procedure for reporting sexual harassment, her Title VII complaint should not have been dismissed on summary judgment, held the Third Circuit. After years of unwanted sexual advances by her supervisor, the secretary brought a sexual harassment claim against him and her employer. The district court held that the employer was not liable because it exercised reasonable care to eliminate the harassing behavior and that, by not reporting the supervisor’s behavior, the employee had failed to take advantage of the safeguards put in place by the employer. But the appeals court found that disputed fact issues should have permitted the claim to go to a jury—including evidence of prior harassment complaints against the supervisor, and the employee’s genuine fear of reprisal and belief that her complaint would be futile (Minarsky v. Susquehanna County, July 3, 2018, Rendell, M.).

The supervisor made unwanted sexual advances towards his secretary for a number of years. She never reported his conduct. The supervisor was warned twice for harassing other employees and eventually fired after his conduct toward the secretary came to light. The secretary then brought a sexual harassment claim against the county and the supervisor. The district court dismissed the case on summary judgment, finding that the county had shown that it should not be vicariously liable for the harassment because it exercised reasonable care to eliminate it and the employee failed to take advantage of the safeguards put in place.

However, the Third Circuit found that the questions whether the county acted with reasonable care to detect and eliminate the harassment and whether the employee acted reasonably in not reporting the harassment should be decided by a jury.

Reasonable safeguards? First, the appeals court considered whether the county exercised reasonable care to prevent and correct promptly any sexually harassing behavior. The county maintained a written anti-harassment policy, but there was evidence that it had turned a blind eye to harassment by the supervisor. He had made inappropriate physical advances to a number of employees, including two women who were in a position to discipline him for his behavior. Although one of them raised the issue with the county commissioner, no reprimand was issued. There was at least a question of fact, the appeals court found, as to whether the county exercised reasonable care to prevent and promptly correct the sexually harassing behavior.

Failure to report. Moreover, the employee did not necessarily act unreasonably by failing to report the supervisor’s behavior. Mere failure to report is not per se unreasonable, the appeals court noted. Here, the employee testified that she needed the job and was afraid of retaliation. The supervisor and employee worked together alone one day a week, and he monitored her on the other days. The power imbalance between the two could have contributed to the employer’s fear of speaking up, the court observed. She presented evidence that the supervisor became ill-tempered when she tried to assert herself (for example, by not answering his phone calls on days she was not working). In other words, the employee’s fear was not just a general fear of retaliation, but was specific and supported by evidence.

In addition, the supervisor had discouraged the employee from using the anti-harassment policy by repeatedly telling her that she could not trust the managers to whom she would have reported the conduct. She also testified that she thought reporting the harassment would be futile since the county knew of his past harassment, yet the conduct continued. Under the circumstances, a jury could find that her non-reporting was reasonable. Therefore, her claims should not have been discarded on summary judgment.

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