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California employers are strictly liable for sexual harassment by supervisors, the state Supreme Court held Monday, but damages can be limited if the harassed employee hasn’t taken reasonable steps to stop the problem. “Even under a strict liability standard,” Justice Joyce Kennard wrote for a unanimous court, “a plaintiff’s own conduct may limit the amount of damages recoverable or bar recovery entirely.” In State Department of Health Services v. Superior Court (McGinnis), 03 C.D.O.S. 10088, Theresa McGinnis sued her employer, the Department of Health Services, for sexual harassment and sexual discrimination based on inappropriate comments and unwelcome touching by her boss, Cary Hall. She claimed that the incidents began in early 1996, but she didn’t report any until late 1997. The high court’s ruling holds employers strictly liable under the state’s Fair Employment and Housing Act, but also places some responsibility on the complaining employee by requiring them to comply with the avoidable consequences doctrine. That doctrine says employees must take reasonable steps to minimize harassment — such as reporting to a superior early on — especially when an employer has a program to address harassment. “An employee’s failure to report harassment to the employer is not a defense on the merits to the employee’s action under the FEHA,” Kennard wrote, “but at most it serves to reduce the damages recoverable.” Several amici curiae on both sides of the case had asked the high court to decide whether employers could rely on a newly recognized federal defense to workplace harassment claims. The so-called Ellerth/Faragher defense is based on a couple of 1998 U.S. Supreme Court rulings — Burlington Industries v. Ellerth, 524 U.S. 742, and Faragher v. City of Boca Raton, 524 U.S. 775. In those cases, the nation’s highest court held that under Title VII, the federal anti-discrimination law, an employer cannot be held liable for sexual harassment by a supervisor if reasonable care has been taken to prevent and correct unacceptable behavior, and the complaining employee has failed to take advantage of the company’s anti-discrimination policies. Lawyers for the employer-side amici had argued in court papers that such a defense provides needed incentives for employers to establish and enforce anti-harassment policies and for harassed employees to make use of the employer’s remedies. Those siding with McGinnis argued that strict liability without the cushion of an affirmative defense would accomplish essentially the same outcome. Justice Kennard said there was no need for the court to weigh in on that issue, leaving it, instead, for the state Legislature. “This is an empirical question of fact better suited to legislative investigation and determination,” she wrote, “and we decline to speculate on the correct answer.” Los Angeles employee-rights lawyer Jeffrey Winikow, amicus counsel for the California Employment Lawyers Association, said Monday that he sees the overall ruling as positive for his side, even though the court gave employers a damages defense by forcing employees to contend with the avoidable consequences doctrine. “What the Supreme Court has taken away in terms of absolute liability without regard to an offset for damages,” he said, “the Supreme Court has giveth back in terms of the broad range of evidence that would come into play under workplace harassment complaints. “The employer not only opens the door for an affirmative defense, but places its entire internal complaining mechanism under the microscope,” Winikow said. “A good plaintiffs lawyer is not only going to walk through that door, but drive a truck through it.”

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