Finding the Facts - Disciplinary and Harassment Investigation

F AIR E MPLOYMENT AND H OUSING A CT : M C G INNIS In State Department of Health Services v. Superior Court (McGinnis) , 223 the California Supreme Court held that an employee who unreasonably fails to utilize adequate anti-harassment procedures may have damages reduced. But, employers are still strictly liable for sexual harassment by supervisors. Theresa McGinnis was employed by the State Department of Health Services (DHS). She claimed that her supervisor, Cary Hall, had engaged in inappropriate sexual comments and unwelcome physical contact from early 1996 until late 1997. She did not report the harassment to DHS management until November 1997. DHS conducted an investigation and initiated disciplinary action against the supervisor, who then retired. McGinnis sued DHS for sexual harassment and discrimination in violation of the FEHA. DHS asserted as an affirmative defense, based upon the U.S. Supreme Court decisions in the Ellerth/Faragher cases, supra , that it had developed policies and training to prevent and remediate harassment, and that McGinnis’s failure to avail herself of DHS’s policies and procedures was unreasonable and precluded liability against DHS. DHS moved for summary judgment on its affirmative defense based upon the Ellerth/Faragher cases. Those cases held that in lawsuits alleging sexual harassment under Title VII (including harassment by a supervisor), an employer has a complete defense to the lawsuit if:  The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and  The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. The trial court denied DHS’s summary judgment motion on the grounds that the Ellerth/Faragher defense does not apply to FEHA claims. The Court of Appeal agreed with the trial court. The California Supreme Court granted review of the Court of Appeal’s decision. The California Supreme Court noted that, unlike Title VII, the FEHA specifically prohibits sexual harassment, requires an employer to take all steps necessary to prevent harassment, and requires an employer to distribute information to its employees regarding sexual harassment law and the employer’s anti-harassment procedures. The FEHA provides that an employer is only liable for harassment by a non-supervisory employee if the employer knew or should have known of the harassment and failed to take immediate appropriate corrective action. Therefore, for all other employees - i.e., supervisory employees - an employer is strictly liable for all sexual harassment of nonsupervisory employees. But the Court emphasized the critical distinction between liability for harassment and damages. While the FEHA provides that employers are strictly liable for all harassment by a supervisor, the FEHA does not preclude affirmative defenses that may reduce the damages available to a plaintiff. California law has long recognized the doctrine of avoidable consequences that prohibits a plaintiff from recovering damages that could easily have been avoided. The Court  The employee suffered no tangible adverse employment action;

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