In New Jersey, sexual harassment in the workplace is considered a form of unlawful sex discrimination. The elements that a plaintiff must prove can vary depending on the circumstances of the case, and several defenses are available to defendants. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, recently ruled on a defendant’s use of the Faragher-Ellerth affirmative defense. A defendant can overcome liability under federal law if they can prove, in part, that a plaintiff unreasonably failed to report alleged sexual harassment. The plaintiff did not report alleged sexual harassment by her supervisor for four years. The court rejected the defendant’s claim that this was per se unreasonable under Faragher-Ellerth, citing the recent revelations of the #MeToo movement. Minarsky v. Susquehanna Cty., No. 17-2646, slip op. (3d Cir., Jul. 3, 2018).
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex and other factors. Numerous court decisions have applied this to sexual harassment. When an alleged harasser is a coworker of the complainant, or is otherwise not part of the company’s management, the employer is only liable if it was aware of the alleged harassment and failed to make reasonable efforts to remedy the situation.
The Faragher-Ellerth affirmative defense is partially based on this obligation to notify the employer and seek internal remedies. Since it is an affirmative defense, the burden of proof shifts to the defendant to prove two elements:
1. “[T]he employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998); and
2. The complainant “failed to [use] reasonable care to take advantage of the employer’s safeguards and…to prevent harm that could have been avoided.” Faragher v. Boca Raton, 524 U.S. 775, 805 (1998).
The plaintiff in Minarsky began working for the defendant on a part-time basis in September 2009. She worked for the director of a county department “in an area separate from other County employees.” Minarsky, slip op. at 4. She alleges that this individual frequently subjected her to unwanted physical contact, including attempts to kiss her on the lips, and “non-physical conduct” like sending “sexually explicit messages from his work email.” Id. at 5.
The plaintiff reportedly learned of earlier reprimands against the director. She claimed that she did not report the alleged harassment because she worried that it would only lead to her losing her job. She finally reported it in July 2013 at the urging of her physician, because of “its emotional toll on her health.” Id. at 8. The director was terminated soon afterwards, but the plaintiff claims that she remained “uncomfortable in her role” and felt that her new supervisor was subjecting her to retaliation. Id. at 10.
Because of the four-year delay in reporting, the district court granted the defendant’s motion to dismiss based on the Faragher-Ellerth affirmative defense. In reversing this order, the Third Circuit mentioned “national news regarding a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years.” Id. at 20 n. 12. It held that “a mere failure to report one’s harassment is not per se unreasonable,” and that “the passage of time is just one factor in the analysis.” Id. at 21.
The employment attorneys at the Resnick Law Group represent workers in New Jersey and New York who have experienced unlawful employment practices like discrimination and sexual harassment. To schedule a confidential consultation to discuss your case, please contact us today online, at 973-781-1204, or at 646-867-7997.
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