1. What do you think of the Court not allowing the affirmative defense if there was a tangible employment action such as a discharge, demotion, or undesirable reassignment?

2. Do you understand why the Court would allow this affirmative defense in cases where there is no loss of tangible job benefit, but not in cases where there is such a loss?

Issue: Whether an employee who is sexually harassed in a workplace with an anti-sexual harassment policy can still bring an action for sexual harassment if she did not avail herself of the policy and even if she lost no tangible job benefit because of the harassment.

Facts: Employee was sexually harassed by her supervisor, but she lost no tangible job benefits, and she did not report the harassment until a few weeks after she left because of the harassment.

Decision: Yes, the employee here could still bring the cause of action, but in cases such as this where there is no loss of tangible job benefits, the employer could use as an affirmative defense the existence of procedures for reporting and handling sexual harassment complaints and an employee’s failure to use them. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.