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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.

Employee Rights Attorney Frank Pray

5160 Campus Drive

Newport Beach CA 92660

949.251.1006

877.job.atty


OBTAIN YOUR FREE

CASE EVALUATION

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