Elizabeth McManus Quoted in “Epic, Janus Highlight 2018’s Biggest Employment Rulings”

Law360

Elizabeth K. McManus, Senior Counsel in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law360, in “Epic, Janus Highlight 2018’s Biggest Employment Rulings,” by Vin Gurrieri. (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Supreme Court’s blockbuster twin bill of Epic Systems and Janus — which blessed employers’ use of arbitration pacts with class action waivers and curtailed public-sector unions’ ability to collect fees from nonmembers — highlighted a crop of 2018 rulings that are likely to leave a lasting impact on the employment law landscape. …

Minarsky v. Susquehanna County

In July, the Third Circuit issued a precedential decision that a jury should decide whether Pennsylvania’s Susquehanna County took reasonable steps to protect an employee from workplace sexual harassment, and whether a woman accusing her boss of making unwanted sexual advances took full advantage of those protections.

The panel upended a lower court’s decision that Susquehanna County was entitled to summary judgment over claims made by Sheri Minarsky, a part-time secretary for the county’s Department of Veterans Affairs, that she was sexually harassed for years by her boss, Thomas Yadlosky.

The panel said Susquehanna County shouldn’t have won summary judgment based on its assertion of the so-called Faragher-Ellerth defense. To successfully use that defense, employers must show that they “exercised reasonable care” to avoid or address harassment, and that a plaintiff “failed to act with like reasonable care” by not using the processes employers put in place to safeguard against harassment.

“I think the big takeaway from the Third Circuit’s decision is that it makes reasonableness of conduct — both an employer’s conduct and an employee’s conduct — the true touchstone in analyzing the Faragher-Ellerth affirmative defense, and that reasonableness has to be judged in light of the particular factual circumstances before the court, which will necessarily vary from case to case,” said Elizabeth McManus, senior counsel at Epstein Becker Green. “This is going to lead to more unpredictable outcomes for employers and certainly an increased likelihood that the court will look to a jury to evaluate the facts and circumstances before making a determination on the applicability of the defense.”