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.