MARCH 2019 • FOGHORN 25 LEGAL The European World Leader, proudly serving America's finest ! Reservations, Check-In, Port Automation, ePoS Reservations, Check-In, Port Automation, ePoS We care about your Customers Worldwide, we serve over 33 million passengers, 5 million vehicles and over a million cargo units annually. From whale watching to fine dining and from bay crossings to ocean voyages; Carus has the answer. www.carus.com The European World Leader, to utilize the affirmative defense and avoid liability for the harassment, the burden was on the employer to dem- onstrate: (a) that it took reasonable care to “prevent and correct promptly any sexually harassing behavior;” and, (b) that the employee “unreasonably failed to take advantage of any pre- ventative or corrective opportuni- ties provided by the employer or to otherwise avoid harm.” In the recent case of Minarsky v. Susquehanna County, (3rd Cir. 2018), the Faragher defense entered the #MeToo era. In that case, the Court reinstated a claim against an employer, despite the fact that the employee never reported the sexual advances made by her su- pervisor, which had occurred repeat- edly over a four-year period. The employer challenged the claim largely on the employee’s failure to notify human resources (HR) about her su- pervisor’s conduct. The employer had a clear policy against harassment, and took action against the supervi- sor when ultimately receiving other complaints. The employee, herself, however, had only told a friend, who told another employee, who in turn told HR. From the employer’s per- spective, it had taken prompt action once the particulars of the supervisor’s conduct toward the employee became known, and therefore should have been protected under the Faragher defense. For many, it seemed a case to be dismissed, based on the Faragher defense: the employer had a clear policy in place; the employee knew of the policy and the process, but did not make a complaint. The court however added a new dimension – asking whether the policy was actually effective and was the employee “reasonable” in her reasons for not reporting the incident. In questioning whether the second prong of the Faragher defense test – whether Minarsky had acted “unrea- sonably” in not reporting the conduct – the court expressly cited #MeToo, and opened the door to the possibility that even if an employee failed to use the known policy – failed to report the conduct – the employer may neverthe- less be liable if there were reasons for the employee’s failure, such as credible fear of retaliation: This appeal comes to us in the midst of national news regarding a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by the victims. …. While the policy underlying Faragher-Ellerth places the onus on the harassed employee to report her harasser, and would fault her for not calling out this conduct so as to prevent it, a jury could conclude that the employee’s non-reporting was understand- able, perhaps even reasonable. That is, there