Kentucky employers retain the right to prove they acted reasonably to prevent sexual harassment where an employee grants sexual favors in response to a supervisor’s threats.  The Kentucky Court of Appeals reaches this conclusion in an unpublished decision, Cobb v. Community Action Council, issued Friday afternoon, April 11, 2008.

Federal and Kentucky law alike hold an employer strictly liable where a worker suffers a “tangible employment action” (firing, demotion, failing to promote, etc.) for refusing a supervisor’s sexual overtures.  In Cobb, however, the employee allegedly granted sexual favors to her supervisor in response to his threats.  Such an employee may sue her employer for the supervisor’s sexual harassment, the Court found, but the employer is not automatically (“strictly”) liable for the supervisor’s actions. 

The employer may assert as an affirmative defense the worker’s failure to report her supervisor’s misconduct.  In the absence of an “official act,” such as the supervisor carrying out his threats to harm the “victim’s” employment, an employer is not automatically (“strictly”) liable for the supervisor’s sexual harassment.  If the employer has a proper sexual harassment policy, but the “victim” unreasonably fails to use it, the employer may escape liability.

If followed by other Kentucky courts, the Cobb decision retains for employers an important legal defense where the employer has no prior notice of a supervisor’s sexual misconduct because the employee succumbs to the supervisor’s pressure rather than seek the protection of the employer’s sexual harassment policy.