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Employer May Not Have Affirmative Defense to Harassment Claim even if Employee Fails to Report Harassment

Author: Lee E. Tankle

8/14/2018

Read the full post at HiringToFiring.Law

Employer May Not Have Affirmative Defense to Harassment Claim even if Employee Fails to Report Harassment

Q: Does my company have an affirmative defense to a sexual harassment claim if the company has a policy for reporting sexual harassment and an employee never makes a report of sexual harassment under that policy?

A: Earlier this summer, in a case called Minarsky v. Susquehanna County, the United States Court of Appeals for the Third Circuit (governing employers in Pennsylvania, New Jersey, Delaware, and the Virgin Islands) ruled that “a mere failure to report one’s harassment is not per se unreasonable,” even though the Third Circuit had previously “often found that a plaintiff’s outright failure to report persistent sexual harassment is unreasonable as a matter of law.”

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