In an important new decision from the federal courts, the Third Circuit Court of Appeals ruled that a secretary could pursue her sexual harassment case even though she did not report the harassment she allegedly endured. The new appeals court opinion acknowledges the complicated dynamics that can exist for some workers and the very real and very damaging risks they can face by choosing to stand up and report their harassers to their employers. Whether or not you reported your harassment right away, you may have legal options. Be sure to contact an experienced New Jersey discrimination attorney about your situation.
The secretary, S.M., started working for a Pennsylvania county in 2009. Her supervisor started engaging in unwelcome physical contact soon thereafter. The two frequently worked in a setting where they were the only ones present. The supervisor also allegedly sent the secretary sexually explicit emails, to which she did not respond.
The county was aware of some of the supervisor’s inappropriate behaviors. Twice, the supervisor’s supervisor became aware of the man’s inappropriate conduct toward other female employees and issued reprimands to him. Beyond the verbal reprimands, no further action was taken against the man.
The secretary knew about the county’s anti-harassment policy, but did not report her supervisor, fearing that complaints might lead the county to eliminate her job, which she desperately needed due to a seriously ill child at home. Eventually, she confided in a co-worker. The co-worker’s supervisor overheard the conversation and escalated the problem to the County Commissioners. The county subsequently decided to terminate S.M.’s supervisor.
S.M. quit several years later. She subsequently filed a gender discrimination and sexual harassment lawsuit against the county and her former supervisor. The sexual harassment claim asserted that she was the victim of a hostile work environment.
The employer filed a motion to dismiss the hostile work environment claim, which the trial court granted, meaning that S.M.’s case was thrown out before getting to trial. The Third Circuit, whose rulings impact federal cases in Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands, reversed that decision, meaning that S.M.’s case was revived and she had a renewed chance to go trial.
The key to the secretary’s success was the defense that the employer used. It argued that it met the criteria for something called the Faragher-Ellerth defense. That name refers to a pair of U.S. Supreme Court cases that said that, if an employer could show that “it exercised reasonable care to avoid harassment and to eliminate it when it might occur,” and that the employee “failed to act with … reasonable care to take advantage of the employer’s safeguards,” then the employer could not be liable for hostile work environment sexual harassment.
The appeals court concluded that S.M. had enough evidence that a reasonable jury might decide that the employer’s response to the supervisor’s behavior was insufficient, given the man’s “pattern of unwanted advances toward multiple women.” In other words, a jury might conclude that the reprimands were toothless and that the employer waited too long in ending the man’s employment given what it knew.
This ruling is also important for New Jersey workers because the appeals court plainly announced that a harassment victim’s “mere failure to report one’s harassment is not” automatically a failure to act with reasonable care as required by the law. There are many reasons why a reasonable employee might stay silent. A harassed employee might fear financial reprisals, like demotion or termination. She might also fear the possibility of physical harm. In S.M.’s case, she genuinely feared retaliation and that the retaliation would mean the loss of her job. Given the secretary’s “pressing financial situation” due to her daughter’s illness, a jury might conclude that S.M’s silence was reasonable.
If you have suffered sexual harassment at your job, you do not have to suffer in silence. Talk to the knowledgeable New Jersey employment attorneys at Phillips & Associates. Our attorneys have spent countless hours working to help our clients pursue the legal options available to them. Reach us online or at (609) 436-9087 today to set up a free and confidential consultation and to find out how we can help you.
More blog posts:
What Can Be Learned from the Recent Allegations of an Extremely Hostile Work Environment in New Jersey, New Jersey Employment Lawyer Blog, May 25, 2018
How the Hostile Environment at Your Workplace May Entitle You to Compensation in a Sexual Harassment Case in New Jersey, New Jersey Employment Lawyer Blog, March 28, 2018
Photo Credit: Joe Gratz, [CC0 License], via Flickr