Burdens of Proof in Sexual Harassment Suits

Burdens of Employees and Employers in Sexual Harassment Suits

State Dept. of Health Services v. Superior Court of Sacramento County, 79 P.3d 556, 31 Cal.4th 1026, 6 Cal.Rptr.3d 441 (Cal. 11/24/2003) held that

Facts of the case:
- Theresa McGinnis, who worked at the Department of Health Services (DHS), alleged that her supervisor Cary Hall sexually harassed her from early 1996 until late in 1997.
- In 1996, McGinnis told a coworker about Hall's behavior but did not formally report it to management until November 1997.
- The formal report resulted in an investigation, which determined that Hall had violated DHS' sexual harassment policy. Disciplinary action began against Hall, prompting Hall to retire.
- McGinnis sued both Hall and DHS alleging sexual harassment and sex discrimination in violation of FEHA.
What the Court held:
- An employer is strictly liable for all acts of sexual harassment by a supervisor.
- However, a plaintiff's own conduct may limit the amount of damages recoverable or bar recovery entirely.
- The avoidable consequences doctrine in California (a person injured by another's wrongful conduct will not be compensated for damages that the injured person could have avoided by reasonable effort or expenditure) applies to hostile environment sexual harassment suits against the employer.
- An employer sued for hostile enviroment sexual harassment by a supervisor has to prove three things:
- - The employer took reasonable steps to prevent and correct workplace sexual harassment.
  - The employee unreasonably failed to use the preventive and corrective measures that the employer provided (i.e., the employee did not take advantage of the employer's internal complaint procedures appropriately designed to prevent and eliminate sexual harassment if he/she could have prevented damages with reasonable effort and without undue risk, expense, or humiliation); and
  - Reasonable use of the employer's procedures would have prevented at least some of the harm that the employee suffered.

What You Can Do

Deal with your harasser first and make it known that their conduct is unwelcome.
Then, utilize the remedies available within your workplace. If you are not sure of these remedies, do not hesitate to ask Human Resources or someone who is knowledgeable of these resources.
To take advantage of the avoidable consequences defense, the employer will need to show that it has adopted appropriate antiharassment policies and has communicated essential information about the policies and procedures to its employees.
After that, the burden is on you to show that you used the preventive and corrective measures that the employer provided. To avoid damages, the employer only needs to show that a reasonable use of these procedures would have prevented at least some harm that you suffered.

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The Employment Law Office of Frank Pray handles cases related to most areas of employment law. My law firm is dedicated to helping employees dealing with issues of workplace discrimination (including gender discrimination, race discrimination, age discrimination and discrimination based on religion, national origin, sexual orientation, disability, pregnancy or illness); harassment due to hostile work environment (whether sexual, verbal, or other); contract disputes; wage and hour violations (such as overtime or break violations); whistleblower retaliation, qui tam and false claims act cases; and severance agreements and negotiations. My legal services and advice are available to any employee involved in illegal or wrongful termination, assault, battery, defamation, slander, or violation of privacy; or with job concerns regarding medical leave, Occupational Safety & Health Act (OSHA), affirmative action, gay & lesbian rights, Fair Employment and Housing Act (FEHA), labor code violations, Americans with Disabilities Act (ADA), California Family Rights Act, the federal Family Medical Leave Act, Employee Retirement Income Security Act (ERISA), Worker Adjustment and Retraining Notification (WARN) Act, or the Federal Employer's Liability Act. I can be contacted by anyone seeking an attorney for information about employee civil rights, or opportunities for monetary settlement, damages, or personal injury claims. "Employee Rights" is my exclusive focus, and has been for over 15 years.

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