It depends on whether the employers have a defense if the harassment by a supervisory employee led to a tangible employment action being taken against the employee. In other words, if the employee had to quit because of the harassing conditions, the employer probably would have no defense, because there was a tangible employment action a constructive discharge.

However, if the harassment does not end up in a tangible employment action, then an employer can assert an affirmative defense by showing two things: (1) that employer took prompt remedial action to ensure no further harassment; and (2) that the employee failed to take advantage of any existing anti harassment policy or procedures put in place by the employer.

• If a supervisor commented on an employee’s physical anatomy a few times and made several sexual jokes in her presence, is that sexual harassment?
• Does Title VII apply to harassing behavior on the part of employers?
• If an employer does present a legitimate, nondiscriminatory reason for the discharge then what must the employee do to prove his or her case?
• If an employee presents a prima facie (or basic) case of discrimination, what must the employer show?
• Would a negative performance evaluation constitute an adverse employment action?
• What is an adverse employment action?
• How should and employer determine if an employee is qualified?
• What is a protected class?
• What happened to Percy Green after McDonnell Douglas v. Green?
• What was the McDonnell Douglas case about?
• Under the McDonnell Douglas framework, how does an employee establish a prima facie case of discrimination?
• How does a court determine whether an employee suffers discrimination?
• Does the EEOC’s finding of no discrimination prevent a subsequent court proceeding?
• What if the EEOC does not find there has been discrimination?
• What is a right to sue letter?
• What if the EEOC finds there has been discrimination?
• What happens once an employee files a charge of discrimination?
• What are the time limits for filing an Equal Employment Opportunity Commission (EEOC) charge?
• How does an employee file a claim under Title VII or other federal employment law?
• What if an employer has multiple reasons for taking adverse action against an employee a discriminatory reason and a lawful reason?