“Why Didn’t She Complain About It Earlier?”

Judges gavel with scales of justice.

As recent news surrounding the confirmation process of a U.S. Supreme Court justice has highlighted, the credibility of victims of alleged sexual assault and harassment allegations are often called into question because of the length of time that has passed. In footnote 12 of a very recent sexual harassment case, the Third Circuit Court of Appeals addressed just such a preconception in reversing a lower court decision dismissing a case because of such a delay. (Minarsky v. Susquehanna County, Thomas Yadlosky, Jr., Docket No. 17-2646 (3rd Cir, July 3, 2018).)

The facts of the opinion: “Thomas Yadlosky, the former Director of Susquehanna County’s Department of Veterans Affairs, made unwanted sexual advances toward his part-time secretary, Sheri Minarsky, for years. She never reported this conduct and explained in her deposition the reasons she did not do so. The County ultimately terminated Yadlosky when the persistent nature of his behavior toward Minarsky came to light [from another source].” Her lawsuit, in part, sought to hold the County vicariously liable for Yadlosky’s harassment. The County relied on the Faragher/Ellerth affirmative defense that the plaintiff “failed to act with like reasonable care to take advantage of the employer’s safeguards and otherwise prevent harm that could have been avoided.” (Faragher v. City of Boca Raton, 524 U.S. 775, 805 (1998).) It argued that the Ms. Minarsky’s years-long delay in complaining was unreasonable as a matter of law. The lower court agreed and dismissed her suit against the County.

As stated, the Third Circuit reversed. What is most remarkable about this decision is the Court’s lengthy review in its footnote of the actual culture facing women in the workplace: “This appeal comes to us in the midst of national news regarding a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by the victims. It has come to light, years later, that people in positions of power and celebrity have exploited their authority to make unwanted sexual advances. In many such instances, the harasser wielded control over the harassed individual’s employment or work environment…. Nearly one-third of American women have experienced unwanted sexual advances from male coworkers, and nearly a quarter of American women have experienced such advances from men who had influence over the conditions of their employment, according to an ABC News/Washington Post poll from October of 2017…ABC News/Washington Post, Unwanted Sexual Advances: Not Just a Hollywood Story (Oct. 17, 2017… A 2016 Equal Employment Opportunity Commission (EEOC) Select Task Force study found that approximately 75 percent of those who experienced harassment never reported it or filed a complaint (emphasis added), but instead would “avoid the harasser, deny or downplay the gravity of the situation, or attempt to ignore, forget, or endure the behavior.” EEOC Select Task Force, Harassment in the Workplace, at v (June 2016), … Stefanie Johnson, et al., Why We Fail to Report Sexual Harassment, Harvard Business Review (Oct. 4, 2016), … (women do not report harassment because of retaliation fears, the bystander effect, and male-dominated work environments).”

What this means to you: Employers may not rely solely on having a well-written harassment prevention policy in place. They must communicate to all employees that they may rely on the policy being enforced and that their employers will protect them. The key to an effective policy is a well-managed and respectful workplace. Training is a key component of having and maintaining such a workplace; training not just in the details of the policy, but also in how to create and maintain good lines of communication and understanding. Those skills are the focus of Fair Measures’ Respectful Workplace and Effective Communication seminars and webinars.

Help your employer meet its requirements under the law and FEHA regulations by contacting us today at 800-458-2778 and booking Managing Within the Law training for your supervisors and managers.

Posted 10-09-2018

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2018-10-09T18:00:23+00:00

About the Author:

Steve Duggan graduated from the Law School at the University of Notre Dame while on active duty in the Air Force. He has extensive experience representing management litigating cases of wrongful termination, employment discrimination, and sexual harassment. Steve also has experience in all phases of administrative litigation of unfair labor practice charges, and class and individual complaints of employment discrimination. He has been an instructor of seminars for supervisors and managers on labor management relations and other personnel issues, and for lawyers in basic and advanced trial advocacy courses. Steve came on board with Fair Measures in 1998.