Can Sexually Explicit Text Messages Support a Sexual Harassment Claim If The Employee Does Not Report Them?

No – in a recent case, the Fourth Circuit Court of Appeals held that the Faragher-Ellerth defense barred an employee’s hostile environment claim based on unreported, explicit text messages with her supervisor.

In McKinnish v. Brennan, the employee exchanged sexually explicit text messages, photos, and videos with her supervisor over a ten-month period. No. 14-2092 (4th Cir. Nov. 6, 2015). The employee never reported these exchanges to her employer as alleged harassment. Instead, the employee’s husband reported the messages to the employer after he discovered them. Although the employer immediately terminated the supervisor, the employee later sued and alleged hostile-environment sexual harassment under Title VII.

The court held that the Faragher-Ellerth affirmative defense barred the employee’s harassment claim. The Faragher-Ellerth affirmative defense applies when: (i) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (ii) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

The court decided that the reasonable care element of the Faragher-Ellerth affirmative defense was satisfied because the employer maintained a policy prohibiting sexual harassment and directing employees how to report it. The employer also terminated the supervisor involved in the inappropriate messages after the employee’s husband reported the matter.

The court also concluded that the employee unreasonably failed to report the alleged harassment. The employee argued that she did not want to report the harassment because it made her uncomfortable and she feared negative repercussions at her job. However, the court rejected this argument, explaining that an employee’s “subjective fears of confrontation, unpleasantness or retaliation” do not alleviate the employee’s duty to alert his or her employer to an allegedly hostile environment. Accordingly, the court affirmed dismissal of the plaintiff’s sexual harassment claim.

Takeaway: The Faragher-Ellerth affirmative defense provides a strong reason for employers to adopt reasonable policies and procedures for reporting workplace harassment.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on January 13, 2016, in Discrimination and Harassment and tagged . Bookmark the permalink. Comments Off on Can Sexually Explicit Text Messages Support a Sexual Harassment Claim If The Employee Does Not Report Them?.

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