Does Relatively Minor Sexually Harassing Behavior Trigger an Employee’s Duty to Report the Conduct?

In a case decided on Thursday, the Tenth Circuit Court of Appeals—the appellate court having jurisdiction over Utah— upheld the dismissal of a complaint brought by a woman against the Colorado Department of Transportation for sexual harassment and retaliation she claimed occurred while she was working for the agency as an administrative assistant. In the case entitled Pinkerton v. Colorado Department of Transportion, the Court considered, among other things, whether the employee had been unreasonable when she did not immediately report the first potentially sexually-charged remarks she heard to the appropriate officials. The Court held that she had an obligation to immediately report the first inappropriate remarks that her supervisor made—even when those remarks were immediately rebuffed and when there is no question that they would not have immediately been considered intolerable enough to constitute a hostile work environment. In a dissenting opinion, one of the judges pointed out that because “the first statement . . . was not sufficient to create a hostile work environment,” it was simply wrong for the majority to conclude that the employee had been unreasonable in delaying the reporting of the conduct.
This decision appears to be a boon for employers. As written, the opinion seems to suggest that an employee must report every instance of potentially harassing behavior even when the behavior is relatively minor.