Although the California Fair Employment and Housing Act is modeled on federal anti-discrimination laws, the state law is often more protective of employee rights. A California Court of Appeal has now ruled that when it comes to employer liability for sexual harassment by a supervisor, the state statute is stronger—and you can’t take advantage of an important defense to supervisor harassment that the U.S. Supreme Court announced several years ago. This decision means California employers are now automatically liable when supervisors sexually harass their employees. We’ll tell you what you can do.
Employee Sues Over Harassment By Supervisor
Theresa McGinnis worked at the California Department of Health Services. She claimed that her supervisor, Cary Hall, sexually harassed her for several years, including making inappropriate comments and touching her. McGinnis confided in a co-worker about the harassment but didn’t report the problems to management for more than two years. Once she complained, the department investigated, concluded that Hall violated department policy prohibiting harassment and took disciplinary action against Hall.
McGinnis then sued the department for sexual harassment under the state Fair Employment and Housing Act. She contended that under state law, the department was automatically liable for Hall’s harassing behavior.
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Employer Says It’s Not Automatically Liable
The department asked the court to throw out the lawsuit. It asserted that it should not be held liable for Hall’s misconduct because of a defense to supervisor harassment established by the U.S. Supreme Court that allows employers to avoid liability under certain circumstances. The high court ruled that an employer can escape liability for supervisor harassment—provided no adverse action was taken against the employee—if 1) the employer exercised reasonable care to prevent and correct harassing behavior, and 2) the employee didn’t take advantage of the employer’s corrective or preventive opportunities or otherwise failed to avoid harm.
The department pointed out that it had a strong written policy against sexual harassment, provided sexual harassment training to all employees, including McGinnis, and that McGinnis hadn’t availed herself of the department’s comprehensive complaint procedures in a timely manner.
Federal Defense To Supervisor Harassment Doesn’t Apply In California
A California Court of Appeal has now ruled that, under the FEHA, employers are automatically liable when their supervisors harass employees and that the defense established by the Supreme Court applies only to harassment suits filed under federal law. The court based its decision on several differences between federal and state anti-harassment law, including that the FEHA explicitly addresses employer liability for supervisor harassment, while federal law does not. Thus, the court gave McGinnis the OK to proceed with her lawsuit.
Preventive Measures
This ruling makes clear that you will be automatically liable for supervisor misconduct under state anti-harassment law even if you had no notice that a supervisor was harassing an employee and you did nothing wrong. Note that this applies to harassment by both high- and low-level supervisors.
It’s now even more critical to take all reasonable measures to prevent harassment from occurring in the first place with a strong anti-harassment policy, comprehensive complaint procedures and training for all employees. Be sure to provide periodic refresher training to both high- and low-level managers and supervisors about the serious consequences of harassment, and inform them that they can be personally sued for violating the law.
If an employee complains about harassment by a supervisor, investigate thoroughly and, if warranted, impose appropriate discipline. Your prompt response to an employee’s concerns could help avert a lawsuit or help limit the size of a jury verdict if the employee sues.