Supreme Court Limits Damages in Harassment Cases 12-09-2003
- By Rita Risser, attorney at law

A new California Supreme Court sexual harassment case has major implications not only for California employers, but also for employers throughout the US, where courts may very well follow this important decision.

The case involved a woman who worked for the State for about five years. After several years she transferred to a new supervisor. He made inappropriate remarks and touched her, for example, on one occasion grabbing her crotch. The woman complained to a co-worker about the harassment at one time, but did not file a complaint with the employer until one year later. During that year, she suffered continued harassment.

Once the woman filed a complaint, the employer conducted an investigation, found that she had been harassed, and implemented disciplinary procedures against the harasser. Nonetheless, the woman filed suit for damages as a result of the harassment.

The employer's defense was that it should not be held liable for damages under the "avoidable consequences doctrine." This doctrine, which has never been applied by any court in a harassment case, provides that a plaintiff has a duty to prevent future damages. The court held in this case that the woman thought she was being harassed a year before she filed a complaint; if she had filed a complaint at that time, she would not have experienced the emotional distress that she did; therefore, the employer could not be held liable for damages accruing after the time she reasonably should have filed a complaint.

The Court said, "In this particular context, the defense has three elements: (1) the employer took reasonable steps to prevent and correct workplace sexual harassment; (2) the employee unreasonably failed to use the preventive and corrective measures that the employer provided; and (3) reasonable use of the employer's procedures would have prevented at least some of the harm that the employee suffered." (p. 15-16)

"In other words, to take advantage of the avoidable consequences defense, the employer ordinarily should be prepared to show that it has adopted appropriate antiharassment policies and has communicated essential information about the policies and the implementing procedures to its employees. In a particular case, the trier of fact may appropriately consider whether the employer prohibited retaliation for reporting violations, whether the employer's reporting and enforcement procedures protect employee confidentiality to the extent practical, and whether the employer consistently and firmly enforced the policy. Evidence potentially relevant to the avoidable consequences defense includes anything tending to show that the employer took effective steps "to encourage victims to come forward with complaints of unwelcome sexual conduct and to respond effectively to their complaints." (p. 17)

What You Should Do: If you are an employer, make sure your anti-harassment policies include all of the points listed above. Insure that the policy is distributed, and make sure that employees are aware of the policy by instituting anti-harassment training.

If you are an employee experiencing harassment, make a complaint with your company as soon as possible so that harassment can be stopped immediately.

State Dept of Health Services v. Superior Court (California 11/24/2003)

Our Respectful Workplace Program meets all the court's requirements for informing employees about your anti-harassment policy. For more information, call 800-458-2778.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.