Tuesday, December 18, 2018

My Boss Kissed My Lips (But I Kept Silent): Why Employment Lawyers Rank This a Top 2018 Case



(Hoda Kotb Fends Off Kiss From Regis)
Sherri Minarsky’s supervisor frequently tried to kiss her on the lips when he left the office, approached her from behind and embraced her, and massaged her shoulders or touch her face.
Under Supreme Court precedents from 1998 (Faragher and Ellerth), an employer is liable for a supervisor’s sexual harassment if it leads to a concrete adverse outcome, such a firing, demotion, denial of pay raise, etc.
But, if the harassment has no objectively adverse effect, it falls into a different category: The employer is not liable for a supervisor’s conduct unless the employee complains and management ignores her (or him).
Ms. Minarsky never complained. For that reason, the trial court threw out her lawsuit.
The Third Circuit Court of Appeals, citing new evidence from the #MeToo movement that some victims of supervisor harassment are fearful of reporting on their boss, reversed the lower court and made new law.
Listen to what the court said:
“Her silence might be viewed as objectively reasonable in light of the persuasive facts Minarsky has set forth,” the opinion said, pointing to Minarsky’s testimony that she feared losing her job if she came forward.
The court also noted “national news regarding a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years.”
In a footnote, the court cited studies in which one-third of women reported unwanted sexual advances from male co-workers, and where three out of four women who experience sexual harassment in the workplace opted not to report it.
What does this mean? It means that harassment victims who suffer in silence have a chance to tell their account to juries.

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