Atwood, Haiman & Westerberg

Legal Topics December, 2001

Employers Now Strictly Liable for Sexual Harassment by Supervisors
By D. Kent Westerberg
Under California law, employers are now strictly liable for sexual harassment by supervisors. The decision of the Third District Court of Appeal in Dept. of Health Services v. Superior Court of Sacramento County (McGinnis) 01 C.D.O.S. 9999 is a case of first impression in California because it establishes for the first time that there is a difference between Federal law and California law in terms of employer liability for sexual harassment by supervisors.
In 1998, the United States Supreme Court issued a pair of rulings in Burlington Industries v. Ellerth 524 U.S. 742 and Faragher v. City of Boca Raton 524 U.S. 775, that under Title VII, the Federal Anti-Discrimination law, an employer is not liable for sexual harassment by a supervisor if the employer exercised reasonable care to prevent and correct sexually harassing behavior, and if the plaintiff unreasonably failed to take advantage of the corrective or preventative measures provided by the employer. Until the decision in Dept. of Health Services, the law was unclear in California as to whether or not these defenses could be applied if the plaintiff filed for sexual harassment under California's Fair Employment and Housing Act. As a result of the ruling in Dept. of Health Services, the defenses are not applicable and employers are strictly liable for sexual harassment by supervisory employees.
It is expected that the decision in Dept. of Health Services will either be appealed to the California Supreme Court, or the California Legislature will take action to amend the California Fair Employment and Housing Act to preclude employer liability for sexual harassment by a supervisor where the employer exercises reasonable care to prevent and correct sexual harassing behavior and the plaintiff unreasonably fails to follow the preventative procedures and sexual harassment policy implemented by the employer. However, until the decision in Dept. of Health Services is either overruled by the California Supreme Court, or the legislature amends the California Fair Employment and Housing Act, the rule is, employers are strictly liable for sexual harassment by supervisors under FEHA.