According to the 4th Circuit Court of Appeals, an employer has to pass a three-pronged test to avoid liability for harassment.
Factor 1
- Did the supervisor’s harassment result in a substantial employment action? If so, the employer is liable
If no substantial employment action was taken…
Factor 2
- The employer exercised reasonable care to prevent and correct any harassing behavior AND
Factor 3
- The employee unreasonably failed to take advantage of the preventive or corrective opportunities the employer provided
Remember, if you or should have known, you have a duty to report and/or take action and investigate.
HRMorning.com, “She never reported harassment: A 3-Factor test determined who’s liable”, by Christian Schappel, February 3, 2016