Under Title VII, employers are generally strictly liable for harassing conduct by supervisors. In its Faragher and Ellerth decisions, the U.S. Supreme Court developed a limited defense for employers accused of supervisor harassment. The employer can avoid liability if it can show that it had in place an anti-harassment training and prevention program, and that the employee unreasonably failed to make use of these procedures. A new case from the Third Circuit Court of Appeals shows that mere adoption of a harassment policy is not enough to satisfy this requirement when the employer fails to actually implement its terms.
In Minarsky v. Susquehanna County, the plaintiff alleged that she had been systematically harassed by her supervisor for a number of years. The district court dismissed her complaint under the Faragher/Ellerth standard because she never complained to her employer about the harassment. The Third Circuit reversed and remanded this case based on evidence that the plaintiff’s co-workers had repeatedly complained about similar behavior by the supervisor, and the county took no action in response.
In addition, the court concluded that the plaintiff had a reasonable fear of retaliation by her supervisor had she complained about his conduct. This evidence included a relatively isolated working relationship and prior expressions of anger by him. This case demonstrates that merely placing an anti-harassment policy in the employee handbook will not be sufficient to demonstrate a reasonable effort to detect and deter sexual harassment. Employees and supervisors need to be trained about harassing conduct in the workplace. When complaints are made, the employer must treat them seriously and initiate an investigation and appropriate response to the conduct. Failure to take these follow-up steps will result in an uphill battle to defeat claims of supervisor harassment.