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Employers are strictly liable under California law for sexual harassment by supervisors, the California 3rd District Court of Appeal ruled Thursday. In a unanimous decision, the court said a federal defense available to employers that take steps to address harassment claims does not apply in California cases. The decision in Department of Health Services v. The Superior Court of Sacramento County (McGinnis) 01 C.D.O.S. 9999 is significant because it establishes for the first time that there’s a difference between federal law and California law in terms of employer liability, said San Mateo, Calif., attorney William Quackenbush, who represented plaintiff Theresa McGinnis. Under Title VII, the federal anti-discrimination law, an employer is not liable for sexual harassment by a supervisor if the employer exercised reasonable care to prevent and correct sexually harassing behavior and if the plaintiff unreasonably failed to take advantage of the corrective or preventative measures provided by the employer. Ever since the U.S. Supreme Court arrived at this conclusion in a pair of 1998 rulings ( Burlington Industries v. Ellerth, 524 U.S. 742 and Faragher v. City of Boca Raton, 524 U.S. 775), it’s been unclear whether that defense applied in cases invoking California’s Fair Employment and Housing Act. Thursday’s ruling cleared up the matter. “While DHS advances sound policy reasons for incorporating the Burlington/Faragher defense into state law, we recognize strong countervailing policies also exist,” wrote Justice Harry Hull Jr. in his majority opinion. “Under these circumstances, resolution of this question is best left to the Legislature, not the courts.” Since this is the only California court decision on the subject, it binds every trial court in the state. The upshot is that any supervisor harassment claim brought in California is much more likely to be brought under California law than federal law, said Quackenbush. The decision came in a suit filed by Department of Health Services employee Theresa McGinnis, who complained that her supervisor, Cary Hall, had sexually harassed her over an extended period. Invoking Burlington/Faragher, DHS moved for summary judgment or summary adjudication because it had developed a comprehensive policy and program to combat sexual harassment and because McGinnis had not availed herself of those measures in a timely manner. The decision means McGinnis goes back to trial, and that DHS can’t use the federal defense. Thursday’s decision also means that a plaintiff can now let sexual harassment go on for months and months without telling anybody about it, said Supervising Attorney General Barbara Morris, who represents DHS. “There’s no incentive for plaintiffs to go ahead and report behavior that is bothersome to them now whereas there is under Title VII,” she said. According to Morris, it’s still unclear whether DHS will appeal the decision.

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