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California courts’ practice of holding employers strictly liable for supervisor sexualharassment has been called into question by a recent 9th U.S. Circuit Court ofAppeals ruling. The court ruled last week that a woman whose sexual harassmentclaim was thrown out under federal law — because she did not use her company’spolicies to deal with harassment claims before she sued — cannot pursue herclaims under state law for the same reason. The ruling “is going to do away with strict liability inCalifornia. And that is clearly a major defeat for employees,” saidplaintiffs attorney Mark Rudy of Rudy, Exelrod & Zieff. In upholding a federal district court decision to throw out thewoman’s state claims, 9th Circuit Judge Arthur Alarcon said that employers areallowed the same defense against harassment suits under California’s FairEmployment and Housing Act as they receive under federal Title VII of the CivilRights Act of 1964. In so doing, Alarcon ruled that previous California Court ofAppeal opinions holding employers “strictly liable” for supervisorharassment did not preclude the affirmative defense established by the U.S.Supreme Court in two 1998 decisions. The Supreme Court ruled in those cases — Faragher v. City ofBoca Raton, 118 S.Ct. 2275, and Burlington Industries v. Ellerth,118 S.Ct. 2259 — that employers can avoid liability by showing that theyexercised “all reasonable care” to prevent and correct theharassment, and that the employee did not take advantage of preventive orcorrective company policies. The 9th Circuit decision in Kohler v. Inter-TelTechnologies, 01 C.D.O.S. 2890, brings FEHA under the scope of thosedecisions. Faced with predicting how the California Supreme Court woulddecide the issue, Alarcon explained that California courts have consistentlylooked to Title VII for guidance in interpreting FEHA, that the two statuteshad the same legislative intent, and that FEHA’s requirement that employers”take all reasonable steps to prevent harassment” is similar to thefirst test of an affirmative defense. “The obvious difference between the wording of the twostatutes is that FEHA is more specific, both in explicitly proscribingharassment and in delineating that employers are required to make efforts toprevent harassment,” Alarcon wrote. “These discrepancies, particularly the second one, convinceus that the language of FEHA provides an even stronger basis for applying thefederal affirmative defense than does Title VII itself,” he wrote. In 1999, U.S. District Judge Martin Jenkins threw out LeslieKohler’s federal and state claims that she had been sexually harassed by asupervisor. Jenkins granted summary judgment on the ground that the employerhad never been told of the alleged harassment until after she quit. On appeal, Kohler’s attorney, Richmond’s Gregg McCurdy, arguedthat an affirmative defense is not compatible with a term that state courtshave used when referring to an employer’s responsibility for a supervisor’sharassment — “strict liability.” Under “strict liability” in California, an employer canbe held responsible for a supervisor’s behavior toward an employee even thoughthe employer did not know about the harassment and, otherwise, was not atfault, McCurdy argued. But the 9th Circuit cited Luque v. McLean, 8 Cal. 3d 136(1972), in which the California Supreme Court held in a different context thatan affirmative defense can block a strict liability action. The unanimous decision hurts plaintiffs attorneys, who had beenfiling claims in state court partly to avoid the affirmative defense argument. Richard Rahm, an Orrick, Herrington & Sutcliffe associate whorepresents management in employment disputes, said the 9th Circuit was lookingat public policy. The judges “want to encourage employers to have a stronganti-sexual harassment policy.” (Disclosure: Rahm represented TheRecorder in a wrongful termination suit two years ago.)

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