The #MeToo movement has led to profound social revolution in acceptable norms of behavior in the workplace. In its wake, many states enacted legislation mandating sexual harassment awareness training and limiting the use of nondisclosure agreements in sexual harassment cases that legislators believe may have contributed to concealment of recently publicized egregious and serial examples of bad workplace conduct. However, the prevailing view has been that there is no underlying substantive change to the legal principles that govern claims of sexual harassment and that, with the right policies and a robust internal complaints process, companies can continue insulating themselves against liability where an employee fails to make a complaint under the employer's internal procedures. This article examines how the #MeToo movement may have upended this conventional wisdom.

Back to Basics: Employer Affirmative Defenses to Claims of Sexual Harassment

Under Title VII, an employer is vicariously liable for sexual harassment by a supervisor that results in a tangible job action, such as demotion or termination. However, if a supervisor causes a hostile work environment without a tangible job action, the employer has a defense against liability if it can show that: it "exercised reasonable care to avoid harassment and to eliminate it when it might occur," and that the employee "unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise," see Faragher v. City of Boca Raton, 524 U.S. 775, 805 (1998) and Burlington Industries v. Ellerth, 524 U.S. 742, 745 (1998). This affirmative defense, emanating from twin decisions of the U.S. Supreme Court, is often referred to as the Faragher–Ellerth defense.

If the hostile environment is created by a victim's coworker, then an employer is only liable if the plaintiff can show that the employer was negligent because it knew or should have known about the harassment and failed to take prompt remedial action, see Vance v. Ball State University, 133 S. Ct. 2434, 2439 (2013).

Employers have traditionally relied on establishing anti-harassment policies with reporting obligations under a complaints procedure. If a company can show it has effective policies and trains employees and that the complaints procedure was not utilized, this has historically served to insulate the employer from liability under both the co-worker negligence standard and the Faragher–Ellerth defense. The working assumption has been that these principles remain unaffected by the #MeToo movement.

Is It 'Time's Up' on the Traditional Response to Sexual Harassment?

The potency of the employer defense may, as a practical matter, have been severely diminished by a recent decision out of the U.S. Court of Appeals for the Third Circuit in Minarsky v. Susquehanna County, 895 F.3d 303 (3d Cir. 2018), which directly invokes as a source of reference the experiences of victims uncovered as a result of the #MeToo movement.

The Minarsky case involved a sexual harassment claim brought by Sheri Minarsky, a secretary, against her employer, Susquehanna County, and her former boss as a result of her boss' alleged unwanted sexual advances over a period of four years. The alleged actions included kissing, hugging, massages and other nonphysical conduct. Minarsky admitted that she did not report the conduct to the county despite the existence of an anti-harassment policy. However, she sought to excuse her failure to utilize the internal complaints procedures because her boss had repeatedly warned her not to trust the people responsible for overseeing the process. In addition, she claimed that she was financially dependent on her job to pay for her daughter's cancer treatment and was scared that her boss would retaliate if she complained. Minarsky alleged that the harassment started soon after she was hired in 2009; she said she protested "mildly and jokingly" initially and, ultimately, in 2013, she wrote her boss a letter asking that he stop his behavior. The county only learned of Minarsky's allegations in 2013, around the same time as her letter; it immediately investigated and, based on the findings, terminated Minarsky's boss. Minarsky quit her job about 18 months later.

The district court granted summary judgment in the county's favor based on the undisputed evidence about Minarsky's admitted failure to make a complaint under the internal policy and the county's swift and definitive action to end the harassment by terminating the alleged perpetrator. In reaching its conclusion, the district court followed a long line of cases in holding that the county was shielded as a matter of law from liability pursuant to the Faragher–Ellerth defense. The district court determined that there was no evidence suggesting that the county otherwise knew about the supervisor's behavior, and that the county "acted effectively and with dispatch" when finally alerted to the behavior.

However, in an opinion authored by Judge Marjorie Rendell, the Third Circuit reversed and remanded, finding that the Faragher–Ellerth defense was not necessarily available despite the fact that Minarsky had not utilized the complaints process and that the county acted promptly and decisively to end the harassment. Instead, Rendell determined that the question of whether Minarsky unreasonably failed to follow the internal process was a question of fact to be decided by the jury.

As to the first element of the Faragher–Ellerth defense regarding reasonable care, the court disagreed that the county's policies and responses were necessarily reasonable, pointing to the fact that the supervisor had twice been reprimanded before for engaging in similar conduct directed at other personnel. The court observed that there was a genuine issue of material fact as to whether the supervisor's termination was actually a "reflection of the policy's effectiveness" or instead just evidence of the county's final exasperation. To resolve this factual issue, the court held that a jury must decide whether the county exercised reasonable care to prevent and promptly correct sexually harassing behavior.

As to element two of the Faragher–Ellerth defense regarding the failure to report the conduct, the court held that a jury could find Minarsky did not act unreasonably in light of the circumstances. According to the court, a jury could find that reporting the behavior would be futile, if not detrimental, especially since others knew of the behavior but it continued after Minarsky's boss had been reprimanded. The court found that Minarsky's testimony supported a conclusion that her fear of retaliation was reasonable; it was neither generalized nor unsubstantiated. Recognizing that Third Circuit precedent "routinely found that passage of time coupled with the failure to take advantage of the employer's anti-harassment policy to be unreasonable," the court held that the question of the reasonableness of Minarsky's decision not to trust the process was for a jury to decide. According to the opinion, failing to report harassment is not per se unreasonable if a plaintiff has a genuinely held, albeit subjective, fear of retaliation that is supported by specific evidence. Because a jury might find Minarsky's reticence to be objectively reasonable, the court found there to be a genuine issue of material fact, requiring reversal and remand.

One remarkable feature about this decision is the direct impact of the #MeToo movement experience. In a footnote, Rendell expressly referenced and considered the examples of "rampant sexual misconduct" exposed by the #MeToo movement, most of which had been concealed going unreported by victims for years. By addressing #MeToo and the news stories it unearthed, the Third Circuit's analysis was clearly influenced by our recent social experience—not just legal precedent—in its reversal of the district court. Drawing from the recent social history, Rendell's decision calls into question the conventional wisdom about the efficacy of traditional complaints procedures. Not only are victims often afraid to report harassment but, as Rendell notes, there may be a "certain fallacy that underlies the notion that reporting sexual misconduct will end it."

Legislation Prompted by #MeToo Movement Resulting in Substantive Change in the Law

As mentioned at the outset, various states, including in New York, New Jersey and Maryland, have passed legislation addressing sexual harassment, mandating trainings, and limiting the use of nondisclosure agreements or arbitration in connection with claims of sexual harassment. However, this summer, New York's state legislature, in direct response to the experiences exposed by the #MeToo movement, amended its state law to make it easier for victims to bring and prove claims of discriminatory harassment in the workplace. The amendments make two significant changes to the pre-existing law: harassment claims are now actionable regardless of whether the conduct would be considered "severe or pervasive" under federal law or former state precedent, and an individual's failure to make a complaint about the alleged harassment is not determinative of whether an employer is liable. Under the amendments, an individual need only demonstrate that the harassment rises above what a reasonable victim with the same protected characteristic would consider "petty slights or trivial inconveniences."

#MeToo's Permanent Impact on the Law

Changes in social norms are often followed by changes in common law, and often they impel a response from federal and state legislatures. As illustrated by the Minarsky case and the amendments to the New York law, the impact of the #MeToo movement on substantive law is real and permanent. These developments are likely to be followed by other courts and other legislatures. The days where an employer could rest its laurels on the existence of a robust policy are likely behind us. Society has spoken forcefully, and the law is adapting to reflect the social mores of our times.

Anthony B. Haller, a partner with Blank Rome, has a practice that covers all aspects of labor and employment law, including preventative counseling, complex litigation, trial, and appellate work. 

Asima J. Ahmad, an associate with the firm, concentrates her practice on labor and employment litigation and counseling. She has experience representing clients in state and federal court and before administrative agencies in a broad range of employment matters.