Third Circuit Overturns Summary Judgment Based on the Faragher-Ellerth Defense
Employers who are sued for sexual harassment committed by a supervisor may be able to avoid liability, even if harassment had, in fact, occurred, by asserting the so-called Faragher-Ellerth affirmative defense, named after the two United States Supreme Court cases that first recognized the defense. An employer may assert the Faragher-Ellerth defense to supervisor harassment when no tangible employment action has been taken against the harassed employee and the employer is able to demonstrate (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Recently, the United States Court of Appeals for the Third Circuit, in Minarsky v. Susquehanna County, addressed the requirements of the Faragher-Ellerth defense in the context of the assertion of a female employee that she acted reasonably in not taking advantage of the procedures made available by her employer to prevent or correct the harassment against her by her supervisor. In so doing, the Third Circuit reversed the district court’s grant of summary judgment to the employer based on the Faragher-Ellerth defense and held on the facts of the case a jury should decide the whether the defense applied. Background Sherri Minarsky worked as a part-time secretary at...