Preventing Workplace Harassment, Discrimination, and Retaliation

judgment interest. 233 The FEHA also allows successful plaintiffs to request reimbursement of expert witness fees. 234

The California law that mandates training for supervisors expressly states that providing the training does not insulate against liability for the employer, nor does the failure to provide the training automatically result in liability. 235 Nevertheless, it is reasonable to assume that employees will likely argue that if the employer had provided the training, it might have prevented the very injury that is now the subject of the lawsuit.

A. W HO C AN B E L IABLE ?

1. T HE P UBLIC E NTITY E MPLOYER

Under both the FEHA and Title VII, public entities may be directly liable to harassment victims in civil actions. 236

A public entity employer is strictly liable for sexual harassment under California’s FEHA if the harasser is an agent or supervisor. 237

The FEHA broadly defines “supervisor” to include any employee who has any level of supervisory discretion. Although employers are strictly liable for harassment by supervisors, employers can still mitigate their potential damages by showing the following:

 The employer took reasonable steps to prevent and correct workplace harassment;

 The employee unreasonably failed to use the preventive and corrective measures that the employer provided; and  Reasonable use of the employer's procedures would have prevented at least some of the harm that the employee incurred. This affirmative defense, known as the “avoidable consequences” doctrine, only applies to damages that the employee could have avoided if it would have been reasonable for him or her to utilize the employer's anti-harassment procedures. If a supervisor commits an act of harassment, the employee can still recover damages for the harassing act itself. Moreover, the employee need not always immediately utilize an employer's grievance process if it is inadequate or not communicated, if the employee reasonably fears reprisal by co-workers or management, or if the employee has natural feelings of embarrassment or shame. The employee's conduct is to be evaluated on a reasonableness standard. Evidence of reasonableness would include whether other complaints of harassment were properly handled, whether the employer prohibited retaliation for reporting harassment, whether sufficient confidentiality procedures existed, and whether the employer consistently and firmly enforced its policies. 238

Employers should consider more severe disciplinary measures against supervisors who engage in harassment.

LCW Practice Advisor

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 59