CA Employers Liable for Harassment But Damages May Be Limited

November 26, 2003 ( - Employers in California are liable for sexual harassment by supervisors, but the damages can be limited if the harassed employee has not taken steps to stop the problem.

The California state Supreme Court ruled that even though the state’s Fair Employment and Housing Act places responsibility squarely on the shoulders of the employer, employee are required to comply with the “avoidable consequences doctrice.”   The doctrine provides that 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, according to The Recorder report.

“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.   However, Kennard still found “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 …but at most it serves to reduce the damages recoverable.”

Case History

The original case involved Theresa McGinnis, an employee of the state Department of Health Services, who said she endured two years of improper touching and verbal harassment, beginning in 1996, from her boss before complaining, which occurred at the end of 1997.   An investigation determined the supervisor had harassed McGinnis, and he retired.

McGinnis said she did not complain earlier because she did not think the department would do anything. She cited cases of other workers who had reported the same boss, with no action taken against him.

The Department of Health Services argued that it would have stopped the harassment if McGinnis had complained. Two lower courts decided against the state.

Federal law permits employers to defend themselves in sexual harassment lawsuits when the victim fails to complain. Monday’s ruling brings California closer to federal law.

The case isState Department of Health Services v. Superior Court.