Finding the Facts - Disciplinary and Harassment Investigation

held that in an action for sexual harassment of an employee by a supervisory employee, the employer may avoid damages by proving that:

 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 suffered. This defense only applies to damages that the employee could have avoided if it would have been reasonable for him/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. The Court found that the prevention of workplace harassment is an equal or even greater goal of the FEHA than providing compensation to victims of workplace harassment. Moreover, the two main purposes of the FEHA - compensation and deterrence - are consistent with the application of the avoidable consequences doctrine to FEHA actions. The Court noted that the amici curiae for the employer (which included a brief filed by LCW on behalf of the California League of Cities and the California State Association of Counties) argued that the Ellerth/Faragher defense would provide strong incentives for employers to establish and enforce anti-harassment policies, while the amici curiae for the employee argued that strict liability would provide the strongest incentive. The Court declined to directly address which policy provides a stronger incentive to employers and instead "split the baby" by upholding strict liability in a victory for employees, while providing a defense that reduces damages in a victory for employers. This decision further reinforces the absolute necessity for employers to implement proper sexual harassment policies, train employees about the policies on an ongoing basis, and consistently enforce the policies. Consistent training and enforcement of good anti-harassment policies will result in a complete defense to federal (Title VII) harassment claims under Ellerth/Faragher and a reduction in damages for state (FEHA) harassment claims under McGinnis . Additionally, employers must develop an understanding of who their supervisors are within the meaning of the FEHA. Employers should also consider stronger disciplinary measures against supervisors who engage in harassment than non-supervisors. The Court stressed that the avoidable consequences defense only effects damages, not liability. Since the FEHA permits a prevailing plaintiff in a sexual harassment lawsuit to recover attorney’s fees, an employee will still potentially be able to recover a large attorney’s fee award even if her damages are significantly reduced. 224

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