When a supervisor engages in sexual harassment in violation of Title VII, the employer can be held vicariously liable for the action even if it takes immediate steps to end the harassment once it learns of the conduct. Employers can assert a limited defense to such harassment claims when the employee unreasonably fails to report the conduct to the employer in a timely fashion in situations where she does not suffer tangible harm to her employment. Earlier this month in an unpublished decision, the Fourth Circuit Court of Appeals (which includes North and South Carolina) confirmed use of this defense in a situation where the employee failed to report her supervisor’s sexually explicit text messages.

In McKinnish v. Brennan, the plaintiff was a Postal Service employee who alleged that she and her supervisor exchanged explicit text messages and videos. She claimed that she participated in the conduct in order to receive favorable work assignments from the supervisor. The plaintiff’s husband discovered the conduct and reported it to the Postal Service. The plaintiff subsequently brought a sexual harassment claim.

The Fourth Circuit affirmed dismissal of the claim on summary judgment. It concluded that the plaintiff had unreasonably failed to report the harassing conduct to her employer despite the existence of an effective anti-harassment policy. The plaintiff’s subjective belief that she would be retaliated against for reporting the conduct did not excuse her omission absent any evidence of actual retaliatory conduct against persons who reported alleged harassment.

The Fourth Circuit may have been influenced by the plaintiff’s participation in the sexually explicit conduct. Regardless, employers that maintain effective anti-harassment policies and conduct prompt effective investigations of alleged harassing conduct, can avoid liability for even supervisor harassment when the employee fails to take advantage of the means provided for reporting and stopping the behavior.