New Jersey Employment Attorneys

The Third Circuit has reversed a trial court’s decision that dismissed a sexual harassment lawsuit because the plaintiff employee never complained directly to her employer. The decision is causing employment attorneys across the country to question the continued viability of the Faragher-Ellerth defense, which permits employers to avoid liability for sexual harassment where an employee fails to make a formal complaint about sexual harassment directly to the employer.

In the case of Sheri Minarsky v. Susquehanna County and Thomas Yadlosky, Jr., the employee began her employment as a part-time secretary with the Susquehanna County Department of Veterans Affairs from September, 2009. The employee claimed that she had been sexually harassed by her supervisor throughout her employment starting from the very beginning. The sexual harassment included her supervisor attempting to kiss her on the lips, massaging her shoulders while she was at her computer and approaching her from behind and pulling her against him. The employee also claimed that the supervisor would often question her whereabouts during her lunch hour and would also call her at home under the pretense of a work-related inquiry only to then ask personal questions unrelated to work. The supervisor also sent sexually explicit messages through email to the employee.

While the employee never complained to her employer about her claims of sexual harassment in fear of retaliation, the employer was aware of the supervisor’s inappropriate behavior toward other women, which resulted in two verbal reprimands. Other employees also raised concerns that the supervisor would attempt to kiss employees under the mistletoe during Christmas time.

A recent New Jersey Appellate Court has confirmed that an employee has good cause to leave her job and be eligible for unemployment benefits if the reason for quitting is because she was continuously sexually harassed for an extended period of time.

In the case decided September 12, 2017, the employee worked as an administrative assistant for Surface Source International, Inc. (SSI) from February 2008 until she resigned in April 2014. According to the employee, the warehouse manager continuously called her names, swore at her and used many derogatory terms after she witnessed and confronted him making out with her supervisor in the warehouse. After she confronted her manager about what she saw, the warehouse manager started having a vendetta against her. The warehouse manager had a vendetta against her called her “[m]any verbal names; anything he could say to hurt me. He was commenting on the type of clothes I was wearing, the type of underwear I had on. He . . . stole personal property out of my desk, he vandalized my desk. He physically harassed me[.] [H]e touched me from behind, he had grabbed me. We . . . got into a physical altercation where he took me and slammed me into his desk.” further testified, “And he has done so much things to me, and I have continuously met with them and spoke with them and told them all this, and . . . they never did anything to help the situation.” SSI’s owner told her “that the devil he knows is better than the devil he doesn’t know . . . even though he was harassing me and tormenting me.”

The employee’s testimony that she made complaints to the company was admitted by SSI. In fact, the employee’s manager testified that the employee complained that she had been physically and verbally harassed, but excused SSI’s failure to properly investigate stating when the company confronted the warehouse manager, he would say that he “didn’t do anything.” The manager further testified the owner personally met with the manager and the company wrote him up after he slammed the employee into his desk. Even this undisputed testimony was not enough for the Appeal Tribunal to find that the claimant had good cause to leave the hostile work environment directed at her.

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