Sexual Harassment by a Supervisor - Minimizing Damage Exposure

Under California law, when the alleged harasser is a supervisor the employer is strictly liable to the employee. In other words, an employer is liable for a supervisor's sexual harassment of a subordinate regardless of whether the employer knew it was occurring or the employee reported it.

Sexual harassment is commonly categorized as “quid pro quo” or “hostile work environment”. The former is defined as unwelcome conduct of a sexual nature which is made a condition of employment or an employment decision. The latter involves unwelcome conduct of a sexual nature that creates a hostile work environment or which interferes unreasonably with the employee's job performance.

Sexual harassment can arise from verbal, physical or visual conduct as well as retaliation for reporting the harassment. Fortunately, a recent California Supreme Court decision, while reaffirming the employer's liability for sexual harassment by a supervisor, the Court specifically found that strict liability is not absolute liability.

While an employer is exposed to all damages caused by a supervisor's sexual harassment, the employee's own conduct may potentially limit the amount of damages recoverable. In a recent case, our Supreme Court ruled that the doctrine of avoidable consequences applies to sexual harassment claims. This doctrine applies to damages only preventing an employee from recovering damages for any harm that could have been avoided by the use of reasonable effort after the harassment occurred such as reporting the harassment sooner rather than later.

To establish this defense, an employer must prove it took reasonable steps to prevent and correct workplace sexual harassment through anti-harassment policies, the employee unreasonably failed to use the available procedures the employer provided, and reasonable use of the employer's procedures would have prevented at least some of the harm suffered by the employee

The avoidable consequences defense will not apply if it is proven the employer historically does not investigate harassment complaints or act on findings of harassment, or retaliates against complainants. Employers must establish and communicate their anti-harassment policies, affirmatively act on complaints of harassment and not simply give lip service to its anti-harassment policies.

Employers are well served to investigate all complaints of sexual harassment taking appropriate action when supported by the findings, and to consult with legal counsel to insure appropriate anti-harassment policies are in place.