A Capehart Scatchard Blog

Harassment: To Report or Not to Report? That is the Question!

By on August 14, 2018 in Policy with 0 Comments

“The answer is not that simple,” suggested the Third Circuit Court of Appeals in a recent case in which a former employee for the Susquehanna Department of Veterans Affairs who did not follow the employer’s policy sued her employer, claiming her supervisor kissed her and made sexual advances toward her (Minarsky v. Susquehanna County, 895 F.3d 303 (3d Cir. 2018).

Aren’t Employers Shielded from Liability if They Have Policies and Procedures in Place?  The answer is, “Generally, yes.”  Under long-standing U.S. Supreme Court rulings (Faragher and Burlington Industries), employers can avoid liability in sexual harassment and discrimination cases if they had policies and corrective procedures in place when the acts occurred. In fact, this is precisely why your labor and employment advisors most likely counsel you to carefully review and update your harassment, discrimination, reporting, and investigation policies and to fully investigate any alleged acts of harassment or discrimination.

Why Question this Long-Standing Rule Now? Recognizing that the public agency had adopted an adequate policy to address complaints and that Ms. Minarsky failed to report her allegations of harassment (which we would think precludes her claim in the first instance), the Third Circuit held that having a policy in place “may not be enough.”  Rather, said the Court, an analysis must be undertaken to determine if the policy was “effective” and if the employer “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.”

So What Were the Facts?  In this instance, the employer had a “solid” policy outlining harassment prohibitions and reporting mechanisms and the employee failed to report the behavior.  However, concluded the Court, even though the employee did not actually report the abusive behavior at the time, she identified instances “where asserting herself rendered her work conditions even more hostile”.  For example, when she would object to the supervisor’s advances, he would react negatively and become “nasty.”  To make matters worse, the supervisor was warned twice about his inappropriate behavior towards other employees, he “warned Minarsky not to trust” the County Commissioners, and discovery revealed numerous other instances of harassing behavior by the supervisor. Thus, the Court held, “a reasonable jury could find that [her] fear of aggravating her work environment was sufficiently specific, rather than simply a generalized unsubstantiated fear,” creating a question as to whether she was justified in not reporting the unacceptable conduct. In fact, said the Court, “[a] jury could find that Minarsky reasonably believed that availing herself of the anti-harassment policy would be futile, if not detrimental.”

So What’s the Take-a-Way for Employers? In the first instance, even if you have a “solid” and updated harassment/discrimination/reporting policy (which you should revisit ASAP), that may not be enough! Here, said the Court, even though the employer had a policy in place, it may not have been effective since the employer was “faced with indicators that [the supervisor’s] behavior formed a pattern of conduct, as opposed to mere stray incidents, yet they seemingly turned a blind eye toward [his] harassment.”  The bottom line is if your entity is faced with any type of harassment claim, don’t rely solely on your policies and procedures. Each case is different — each employee has a different set of concerns — and each supervisor or co-worker accused of unacceptable conduct has behaved differently. In these instances, which are all fact-specific, consult your labor and employment counsel to ensure that you’re not “turning a blind eye” to a larger and more complicated problem.

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Carmen Saginario Jr., Esq

About the Author

About the Author:

Carmen Saginario Jr., Esq. is Co-Chair of Capehart Scatchard’s Labor & Employment Group. Mr. Saginario focuses his practice on employment litigation and counseling. He regularly counsels clients on litigation avoidance, personnel policies and procedures including those associated with the Americans with Disabilities Act, Family and Medical Leave Act and Fair Labor Standards Act, employment discipline, layoffs and other terminations. Mr. Saginario directs and participates in internal investigations involving claims of harassment, policy violations, ethics and other employment issues. He also appears on behalf of private and public sector clients before the judiciary as well as State and Federal administrative agencies (EEOC, N.J. Division on Civil Rights, etc.). Mr. Saginario is also experienced in representing clients before arbitrators and mediators. He has negotiated numerous public collective negotiations agreements (e.g., law enforcement, public works, etc.). Mr. Saginario has been certified by the National Football League Players Association (NFLPA) as a Contract Advisor (player agent).

Mr. Saginario also regularly represents clients in administrative and complex civil litigation matters and also supervises Capehart Scatchard’s Corporate Compliance Group which counsels and assists public and private sector entities on establishing and implementing legal and ethics compliance programs.

Mr. Saginario serves as counsel for governmental and other entities (including counties, municipalities, school boards, and fire districts) and individuals with respect to laws governing public entities, as well as educational, procurement, environmental, transportation, and public safety issues.

Mr. Saginario served as a Deputy Attorney General for the State of New Jersey and Assistant Counsel to Governor Thomas H. Kean, has served as Vice Chair and Director of Administration for the Cinnaminson Sewerage Authority, and Vice Chair and Treasurer of the New Jersey Health Care Facilities Financing Authority.

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