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California employers went to the state Supreme Court on Wednesday to argue that a newly recognized federal defense to workplace sexual harassment claims should apply to claims under the state’s anti-discrimination statute. But while somewhat sympathetic, the court’s justices — meeting in San Francisco after a three-month summer break –seemed reluctant to take any action that could appear to undermine the anti-harassment protections provided employees through the state’s Fair Employment and Housing Act. “Something must be done [about harassment],” Justice Kathryn Mickle Werdegar said at one point. “The employee can’t suffer this treatment in silence for years.” In Department of Health Services v. Superior Court (McGinnis), S103487, Theresa McGinnis sued the state agency after former supervisor Cary Hall was disciplined for sexually harassing McGinnis for several years. DHS invoked the Burlington/Faragher defense — so named after a couple of 1998 U.S. Supreme Court rulings. In Burlington Industries v. Ellerth, 524 U.S. 742, and Faragher v. City of Boca Raton, 524 U.S. 775, the nation’s highest court ruled that under Title VII, the federal anti-discrimination law, an employer can’t be held liable for sexual harassment by a supervisor if reasonable care has been taken to prevent and correct unacceptable behavior, and the harassed employee failed to take advantage of anti-discrimination measures adopted by the company. Sacramento’s Third District Court of Appeal ruled against the state in 2001, saying that the Title VII defense was inapplicable to state claims. “Under FEHA and California case law,” Justice Harry Hull Jr. wrote, “employers are strictly liable for the harassing conduct of supervisors.” Much of the Supreme Court’s discussion Wednesday centered on whether the state’s doctrine of avoidable consequences could come into play. Under that rule, the harassed person must take reasonable steps to minimize harassment — as in reporting to a superior early on — and cannot claim damages for harm that could have been avoided. “I’m looking for policy reasons why you think [that doctrine] would apply in this case,” Justice Joyce Kennard asked Sacramento Deputy Attorney General Tracy Hendrickson. Hendrickson said that the Burlington/Faragher defense encourages employers and employees to work together to prevent harassment and to make the employer aware of a possible hostile work environment. “That,” she argued, “makes the policy behind FEHA real.” Justice Kennard also said it appears to her that the issue in McGinnis’ case was the reasonableness of her behavior in not reporting harassment immediately. “There may be fear of reprisal and I think that should definitely be taken into account,” she said. “There also may be feelings of humiliation and embarrassment.” Los Angeles lawyer Marvin Krakow, who represented McGinnis, said there is a distinction between preventing liability and limiting damages. He also argued that the state’s obligation to McGinnis occurred long before she complained, because many other employees had leveled allegations against her supervisor since the early ’90s. “Even if the employer doesn’t know [about a particular employee's problem],” he said, “it is required by law to have a harassment-free workplace.” The court should rule within 90 days.

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