DECEMBER 2003
Recently, the California Supreme Court ruled that, although employers in California are strictly liable for the acts of sexual harassment by supervisors under the state
Fair Employment and Housing Act (“FEHA”), an employer may plead and prove a defense based on the
“avoidable consequences” doctrine. State Dept. of Health
Serv. v. Sup. Ct. (McGinnis), Opinion No. S103487 (November 24, 2003). The “avoidable consequences” doctrine provides employers with a defense to damages, but not to liability, and permits employers to present evidence that: (1) the employer took reasonable steps to prevent and correct workplace sexual harassment; (2) the employee unreasonably failed to use the preventive and corrective measures that the employer provided; and, (3) reasonable use of the employer’s procedures would have prevented at least some of the harm that the employee suffered.
However, the Court refused to adopt the much broader rule articulated by the United States Supreme Court in
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), known as the Ellerth/Faragher defense. Under federal law, the Ellerth/Faragher defense allows an employer in a Title VII sexual harassment case to raise an affirmative defense to liability in situations where the employer exercised reasonable care to prevent and correct any sexually harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities or to otherwise avoid the harm.
By failing to adopt the Ellerth/Faragher defense for
FEHA-based claims, the Court dealt a blow to California employers who remain vulnerable to strict liability for sexual harassment by supervisors. Unlike the Ellerth/
Faragher defense, the unavoidable consequences doctrine is not a complete defense to liability; it affects only the remedy available. Under the avoidable consequences doctrine, “if the employer establishes that the employee, by taking reasonable steps to utilize employer-provided complaint procedures, could have caused the conduct to cease, the employer will nonetheless remain liable for any compensable harm the employee suffered before the time at which the harassment would have ceased, and the employer avoids liability only for the harm the employee incurred thereafter.”
However, the Court in McGinnis went on to stress that an employee’s failure to immediately report harassing conduct will be judged against a standard of reasonableness.
The Court noted that an employee’s delay in reporting acts of sexual harassment may be excused by the employee’s natural feelings of embarrassment, humiliation and shame, or legitimate fears of retaliation, or reasonable lack of knowledge of the policy. Thus, an employee claiming sexual harassment will likely try to use these “excuses” as a means to refute the avoidable consequences defense, and employers should be prepared to demonstrate that such claims are not reasonable because proper anti-harassment policies were in place and have been enforced by the employer in the past.
Since the avoidable consequences defense only applies to damages, and not liability, it provides no grounds for supporting a motion for summary judgment and simply becomes a question of fact for the jury to evaluate. Even then, it is only a mitigating factor for reducing an employer’s damages to the harassed employee. The employer will still be strictly liable for the initial act (or acts) of harassment by the supervisor, as well as for the
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plaintiff’s attorneys’ fees and costs. Nevertheless, where proper complaint procedures are in place and the employee unreasonably fails to utilize them, this will provide employers with a strong argument that the victim’s alleged damages should be greatly reduced. Note: For sexual harassment by a coworker, the law remains unchanged and the employer will not be liable unless the employer knew or should have known of the harassment and failed to take appropriate corrective action.
In order to take full advantage of the avoidable consequences defense, and to provide the strongest argument for its application, an employer should be prepared to show that it adopted appropriate anti-harassment policies, communicated the policies to employees, and instructed the employees on how to implement the procedures. Requiring employees to sign forms acknowledging their awareness of the employer’s sexual harassment policy and complaint procedures is an important first step to complying with the law. Annual training on sexual harassment should also be a part of any effective policy against sexual harassment. This includes not only informing employees about the antiharassment policies of the company, but also training supervisors on the consequences and potential liability for sexual harassment.
Evidence also potentially relevant to the avoidable consequences defense “includes anything tending to show that the employer took effective steps to encourage victims to come forward with complaints of unwelcomed sexual conduct and to respond effectively to their complaints.” This includes not only responding appropriately to all complaints of sexual harassment, but also ensuring that employees are not retaliated against or treated negatively for having complained. Employers should have several people within the organization to whom the employee can report the harassing conduct. Having several people within the company who are charged with receiving complaints of sexual harassment should increase the likelihood that an employee will come forward with his or her complaints, and avoid situations where the person to whom the employee is supposed to report the harassing conduct is also the harasser.
Employers should (1) review their policies against sexual harassment and evaluate them in light of State Dept. of
Health Serv., (2) implement annual training programs, and (3) promptly and thoroughly investigate all incidents that implicate the sexual harassment policy to ensure that their policies and procedures will provide the maximum defense available under the “avoidable consequences” doctrine.
THOMAS H. PETRIDES tpetrides@kl.com
310.552.5077
BRANDI I. HAMER bhamer@kl.com
310.552.5027
F OR MORE INFORMATION , please contact one of the following
K&L lawyers:
Boston
Dallas
Henry T. Goldman 617.951.9156 hgoldman@kl.com
Jaime Ramón 214.939.4902 jramon@kl.com
Harrisburg Carleton O. Strouss 717.231.4503 cstrouss@kl.com
Los Angeles Thomas H. Petrides 310.552.5077 tpetrides@kl.com
Paul W. Sweeney, Jr. 310.552.5055 psweeney@kl.com
Miami
Newark
Daniel A. Casey 305.539.3324 dcasey@kl.com
Marilyn Sneirson 973.848.4028 msneirson@kl.com
New York David R. Marshall 212.536.4066 dmarshall@kl.com
Rory J. McEvoy 212.536.4804 rmcevoy@kl.com
Pittsburgh Stephen M. Olson 412.355.6496 solson@kl.com
Michael A. Pavlick 412.355.6275 mpavlick@kl.com
Hayes C. Stover 412.355.6476 hstover@kl.com
San FranciscoJonathan M. Cohen 415.249.1029 jcohen@kl.com
Washington Lawrence C. Lanpher 202.778.9011 llanpher@kl.com
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This publication/newsletter is for informational purposes and does not contain or convey legal advice. Please note that information about prevailing law is limited to the particular state or federal jurisdiction(s) covered by the cited law and cases, and stricter rules may apply in some states. This newsletter should not be relied upon in regard to any particular facts or
2003 KIRKPATRICK & LOCKHART LLP. ALL RIGHTS RESERVED.