(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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