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The California Supreme Court agreed to decide if employers that provide certain types of training and policies can still be held liable under California law when their managers sexually harass other employees. On Wednesday, five California Supreme Court justices granted a petition for review in the closely watched case Department of Health Services v. Superior Court of Sacramento, S103487. At issue is an affirmative defense under Title VII, the federal anti-discrimination law. Under recent federal decisions, employers can’t be liable under Title VII for sexual harassment by a supervisor if the employer exercised reasonable care to prevent and correct the harassment, or if the plaintiff failed to take advantage of preventative measures provided by the employer. The defense was established in a pair 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). But while the defense is valid under federal law, it’s been unclear whether it can be used in cases brought under California’s Fair Employment and Housing Act. In November, the Third District Court of Appeal unanimously ruled that the defense did not apply under state law. “Under FEHA and California case law, employers are strictly liable for the harassing conduct of supervisors,” wrote Justice Harry Hull Jr. in his majority opinion. But some employment attorneys were not surprised that the issue will now come before the state supreme court. “This is a very significant case for employers and employees,” said employment attorney Victor Schachter of Palo Alto, Calif.’s Fenwick & West. “I believe that the court of appeals decision was seriously flawed in failing to give proper weight to the public policy that the U.S. Supreme Court recognized.” The case involves Theresa McGinnis, a Department of Health Services employee who claimed that her supervisor had sexually harassed her over an extended period of time. The DHS invoked the Burlington/Faragher defense, claiming that it was not liable since it had developed a comprehensive policy and program to combat sexual harassment and since McGinnis failed to avail herself of those measures in a timely manner. The justices granting review were Chief Justice Ronald George and Justices Marvin Baxter, Joyce Kennard, Ming Chin and Janice Rogers Brown.

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