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San Francisco�California employers are strictly liable for sexual harassment by supervisors, the state Supreme Court has held, but damages can be limited if the harassed employee hasn’t taken reasonable steps to stop the problem. “Even under a strict liability standard, a plaintiff’s own conduct may limit the amount of damages recoverable or bar recovery entirely,” Justice Joyce Kennard wrote for a unanimous court. State Department of Health Services v. Superior Court (McGinnis), No. 03 C.D.O.S. 10088 (Nov. 24, 2003). Theresa McGinnis sued her employer, the California Department of Health Services, for sexual harassment and discrimination alleging 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 ruling holds employers strictly liable under the state’s Fair Employment and Housing Act (FEHA) but requires complaining employees to comply with the avoidable consequences doctrine. That doctrine requires employees to take reasonable steps to minimize harassment, such as reporting to a superior early, 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.” Amici on both sides had asked the court to decide whether employers could rely on a newly recognized federal defense to workplace harassment claims. The nation’s highest court held in 1998 that under Title VII of the 1964 Civil Rights Act, 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 hasn’t invoked company 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. Kennard said there was no need for the court to weigh in on that issue, leaving it, instead, for the state Legislature.

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