The Third Circuit recently issued a precedential opinion in a sexual harassment case involving a part-time secretary, Sheri Minarsky, who alleged that the Susquehanna County Director of Veterans Affairs, Thomas Yadlosky, made unwanted sexual advances toward her over a span of almost four years. Minarsky and Yadlosky worked alone on Fridays, and she alleged that he would approach her from behind and try to embrace her, as well as try to massage her shoulders and touch her face. She alleged that these advances occurred weekly and were unwanted, and that he also sent explicit emails to her. She alleged other troubling non-sexual conduct, such as questioning her whereabouts during lunchtime and calling her while off duty under the pretense of asking a work-related question after which personal questions would follow. She claimed that the harassment intensified over time, and that she mildly and jokingly told him to stop at first and that he sometimes would become “nasty” or hostile. Minarsky did not report any of this conduct to the County, although the County eventually learned of it after almost four years had passed.
While no one apparently observed Yadlosky’s harassment of Minarsky (because they worked together only on Fridays and separate from other employees), other County employees had observed him trying to hug and kiss other females. In fact, the Chief County Clerk had twice verbally admonished him for this behavior, and he had even once tried to embrace her (the Chief County Clerk), to which she responded, “Get away from me.” Yadlosky also once attempted to hug the County Director of Elections and kiss her on the cheek, and attempted to kiss women under mistletoe at holiday parties.
After almost four years went by, Minarsky finally confided in a co-worker about Yadlosky’s conduct toward her, which ultimately made its way to a supervisor and then County management. Thereafter, Yadlosky admitted to the allegations and the County discharged him. Minarsky continued to work for the County for a few years, and then quit and proceeded with a sex harassment lawsuit, alleging that she was uncomfortable in her role because her workload had increased and because supervisors asked her what had transpired with Yadlosky.
After depositions were taken in the case, the District Court concluded that the County was entitled to an affirmative defense warranting dismissal of the case in the County’s favor without a jury trial. The affirmative defense was based on the County’s appropriate anti-harassment policy and its prompt remedial measure of discharging Yadlosky, as well as the fact that Minarksy had not taken advantage of the County’s reporting procedures and suffered no “tangible employment action”, i.e., she was not fired, demoted, reassigned, etc. The District Court found that Minarsky’s silence in not reporting Yadlosky’s conduct to be unreasonable, noting that she had not observed any fellow employees suffer retaliation for having followed the reporting provisions of the County’s anti-harassment policy.
It sounds as if the County took the appropriate steps and successfully defended the lawsuit, right? Not so fast! On appeal, the Third Circuit viewed the case differently, perhaps reacting to the MeToo movement. The Third Circuit focused on the fact that the County apparently had some knowledge over a course of years that Yadlosky had a problem with hugging and embracing females in the workplace, even if the County had no knowledge of the particular conduct directed to Minarsky. Because the alleged conduct toward Minarsky “was not unique”, but rather was a “pattern of unwanted advances” toward multiple women, the Third Circuit concluded that Minarsky’s lawsuit should not have been dismissed prior to a jury trial. The Third Circuit questioned whether someone at the County should have ensured that Minarsky was not being subjected to harassment in light of Yadlosky’s apparent habit of inappropriate conduct with females in the workplace.
The takeaway from this precedential opinion is that if an employer has a reasonable belief that a particular employee engages in inappropriate conduct, including being “overly familiar” with co-workers, i.e., hugging, kissing, the employer’s investigation into the matter should be broad rather than narrow in nature. When investigating this type of conduct, employers should not fail to take into account that there may be other victims who have not yet spoken up. Conducting a sufficiently broad investigation may be as simple as interviewing all employees who work with the alleged wrongdoer to ensure that other complaints/victims do not exist. Hindsight is always 20/20, but if the County had asked Minarksy if she was having any problems with Yadlosky when it realized he was being overly familiar with other women, the allegations in her lawsuit potentially would have been discovered and rectified years prior to when it finally was brought to the County’s attention.
It is certainly frustrating for employers when an employee does not report concerning behavior until months or even years pass, but that is often the reality. If you believe there may be a habitual offender in your workforce, consider interviewing all employees who could potentially be a recipient of the inappropriate conduct in order to ensure that you understand the extensiveness of the potential problem. Taking this additional step at the outset, when concerning conduct if first brought to management’s attention, will help prevent inappropriate conduct in the workplace and will help your municipality assert an affirmative defense later on if a sexual harassment lawsuit ensues.