#MeToo Workplace Implications

Eyes are upon the Fourth Circuit as it considers the reporting of workplace harassment. The case is Ray v. International Paper Co. According to Reuters Legal (pay site), there will be oral arguments in September. The plaintiff contends that a "supervisor supervisor propositioned her, made lewd comments, or offered her money for sex" on a "weekly basis beginning in 2003." She complained of the activity in 2014. The defendant investigated those claims in 2014 and found them "meritless."

The plaintiff filed a lawsuit in federal court complaining of the harassment and alleging that her overtime hours were diminished after she voiced her complaints (retaliation). The defendant responded with its conclusions of the accusations being meritless and also complained about the delay in reporting the alleged supervisory behavior. The judge agreed and dismissed the suit concluding: 

"it was unreasonable for her to wait for years to complain, and the delay absolved the company of any liability under Title VII of the Civil Rights Act of 1964."

Ray is asking the 4th Circuit to essentially "revive" her complaint and direct the trial court to proceed with hearing it. There is precedent for such revival, according to Reuters Legal, which cites a Third Circuit decision recently in Minarsky v. Susquehanna County. Ms. Minarsky was allegedly the target of "unwanted sexual advances" for several years. However, she similarly did not report the conduct. Eventually, an investigation led to the termination of the supervisor. Her lawsuit seeks damages from both the supervisor and from the employer. 

The Third Circuit reversed the dismissal of Ms. Minarsky's lawsuit. It concluded that there are multiple factual issues in the allegations, which require determination. The Court held that (1) "whether the County took reasonable care to detect and eliminate the harassment," and "whether Minarsky acted reasonably in not availing herself of the County's anti-harassment safeguards" were both issues of fact that a jury would have to determine. 

Ms. Minarsky worked with the defendant for almost 4 years. The complained of behavior came to the attention of management when she confided it to a friend and when a coworker noticed one incident. Ms. Minarsky eventually wrote an email describing conduct, asking the supervisor to stop, and advising she was uncomfortable. She testified that she knew he had been previously "reprimanded unsuccessfully," and that statements he made about her work made her fear her job could be eliminated. From these, she concluded not to report the supervisor.  

The county then fired the supervisor. Then, "several years later" Ms. Minarsky quit the job. She alleges that she was uncomfortable working for that supervisor, and remained so after the supervisor was fired, due to "inquiries from her new supervisor" regarding his conduct and the reason for his termination. 

The Third Circuit explained the proof required for a harassment claim under Title VII: 

"1) the employee suffered intentional discrimination because of his/her sex, 2) the discrimination was severe or pervasive, 3) the discrimination detrimentally affected the plaintiff, 4) the discrimination would detrimentally affect a reasonable person in like circumstances, and 5) the existence of respondeat superior liability." 

And, it explained an "affirmative defense" that has been described by the United States Supreme Court in two decisions, and which is referred to by a combination of the names of the plaintiffs in those cases, the "Faragher-Ellerth Affirmative Defense." It may result in avoiding employer liability despite the proof above if the employer can prove: 

"(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."

The Court explained that a critical point in this analysis is "reasonableness." It conceded that the employment relationship may mean that "a supervisor's power and authority invests his or her harassing conduct with a particular threatening character." Thus, the employee may well be in a position of inequality generally and may feel threatened specifically, even in the absence of a stated, direct, threat. 

The trial judge determined that the employer "exercised reasonable care to prevent the behavior, and that Minarsky's silence was unreasonable. The plaintiff was unwilling to report the harassment or to avail herself of the policies and processes which the employer had in place for just such behavior. The trial judge concluded that "prolonged failure to report" is "unreasonable as a matter of law." 

The Third Circuit found fault with both of these trial judge conclusions. First, if held that the pattern of behavior at the employer, and the knowledge of management, supported the conclusion that the county "seemingly turned a blind eye toward Yadlosky's (the supervisor) harassment." Therefore, the Court held that (a) would be a fact question in this case. Second, the Court held that remaining silent may be "objectively reasonable in light of the facts plead. Based upon them, a jury might or might not find reasonable Minarsky's failure to report, that (b) is likewise a fact question. 

Of critical import in Minarsky, the Court acknowledges many instances in which the "outright failure to report persistent sexual harassment is unreasonable as a matter of law." But, the Court "clarified" that "a mere failure to report one's harassment is not per se unreasonable." Thus, this case is not an appellate prohibition upon trial court dismissal, but instead will require judicial consideration of both the intensity of the facts presented and the reasonableness of the explanation provided. 

It is important to remember that an appellate court's logic and holding are "binding" (must be followed) in that particular court's geographic jurisdiction. Outside of that area, the opinion is what lawyers call "persuasive" (may be followed, but not necessarily). The Third Circuit (Minarsky) is comprised of Delaware, Pennsylvania, New Jersey, and the Virgin Islands. The second case, which is set for oral argument in September (Ray), is in the Fourth Circuit, which is comprised of Maryland, North Carolina, South Carolina, Virginia and West Virginia, The Fourth is not bound to follow the logic of Minarsky, and so lawyers, businesses and more will be watching for that conclusion. And, Minarsky is arguably not the law in other parts of the country as of today, but lawyers may well argue that other Circuits adopt its logic.

It is possible that the Fourth Circuit will disagree with the Third Circuit. In the event that occurs, it may be that this "unreasonable as a matter of law" except when it isn't analysis will end up under consideration at the U.S. Supreme Court. It is not uncommon for that Court to consider cases which illustrate a legal "conflict," that is where one or more Circuits reach interpretations that are inconsistent with the conclusions/interpretations of one or more other Circuits.

The implications are thus legally interesting. However, the case is interesting because it provides insight into the work environment, and the responsibilities of employers in both noticing and dealing with harassment.

ABOUT THE AUTHOR

David Langham is the Florida Deputy Chief Judge of Compensation Claims. He blogs weekly regarding system issues, regulations and decisions. He has published many articles and delivered more than 1,000 professional speeches.

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