Failing to promptly report harassment by your supervisor can completely bar damages

DAMAGES V. LIABILITY

Under California law, the FEHA (Fair Employment and Housing Act) makes an employer strictly liable for compensable harm caused by hostile environment harassment of an employee by his/her supervisor. While the employer may face strict liability, State Dept. of Health Services v. Sup. Ct (2003) 79 P.3d 556, 31 Cal.4th 1026, 6 Cal.Rptr.3d 441 holds that if the employee does not reasonably report the harassment, his or her recoverable damages may be limited or barred entirely.

HOW ARE DAMAGES REDUCED OR BARRED?

Damages may be reduced or barred if employers establish the “avoidable consequences” defense. In order to do establish this defense, employers must allege the following:
(1) The employer took reasonable steps to prevent and correct workplace harassment;
(2) The employee unreasonably failed to use the preventive and corrective measures; AND
(3) A reasonable use of the employer’s procedures would have prevented at least some of the harm the employee suffered.

If an employee unreasonably fails to report harassment by a supervisor, the employee is denied recovery of only those damages that could have been avoided by using the employer's procedures.

CAN EMPLOYEES RECOVER DAMAGES IF THEY DELAY OR FAIL TO REPORT HARASSMENT?

Employees are always encouraged to report harassment, but sometimes employees may recover damages after reasonable delay or failure in reporting the harassment (for example, if the employee’s supervisor is causing the harassment and company procedures require the employee to report harassment only to that supervisor). In a trial situation, the facts and circumstances of the case will be looked into.

WHAT CONSTITUTES A SUFFICIENT EXCUSE FOR DELAY IN REPORTING ACTS OF HARASSMENT BY A SUPERVISOR?

An employee’s natural feelings of embarrassment, humiliation, and shame may provide a sufficient excuse for delay in reporting.

WHEN IS AN EMPLOYEE EXCUSED FOR FAILING TO UTILIZE AN EMPLOYER'S INTERNAL REMEDIES?

The “avoidable consequences” defense does not apply when taking advantage of the employer’s internal remedies would expose the employee to undue risk, expense, or humiliation.

In addition, the defense is not applicable when there is evidence the employer failed to investigate earlier harassment complaints, failed to act on findings of harassment, or retaliated against the complainants, thus supporting the employee’s claim that he or she acted reasonably in failing to utilize the employer’s established procedures for resolving harassment complaints.

WHAT DOES "REASONABLE" MEAN?

Whether an action is “reasonable” depends on the employee’s efforts “in light of the situation existing at the time”.

WHAT SHOULD AN EMPLOYEE DO IF HIS OR HER EMPLOYER PLEADS THE "AVOIDABLE CONSEQUENCES" DEFENSE?

If an employer pleads the “avoidable consequences” defense, the employee should consider serving discovery requests for all prior complaints of workplace harassment and the handling of those complaints. Such evidence may be helpful to show that the employee was reasonable in delaying or failing to complain.

ISN'T COMPENSATION OF WORKPLACE HARASSMENT VICTIMS SUPPOSED TO BE AN IMPORTANT GOAL OF FEHA?

Yes, but the majority in State Dept. felt that application of the avoidable consequences doctrine would encourage employees to promptly resort to remedies provided by employers and help stop workplace harassment before it became more severe. The doctrine also provides employers with an incentive to establish anti-harassment policies, communicate its policies to its staff, consistently enforce those policies, and promptly intervene when harassment occurs.