California Employment Law Federal Rules Providing Employers with Key Sexual Harassment Defense Rejected

Disagreeing with the Ninth Circuit Court of Appeals, the Third District Court of Appeal, in Department of Health Services v. Superior Court, (November 29, 2001), has reaffirmed the California rule that employers are strictly liable for sexual harassment in the workplace committed by their supervisory employees. In a case of first impression, the court held that the affirmative defense for sexual harassment claims provided to employers by the United States Supreme Court in Burlington Industries v. Ellerth 524 U.S. 742 (1998) and Faragher v. City of Boca Raton 524 U.S. 775 (1998) does not apply to claims brought under California law. In the federal cases, the Supreme Court held that under federal law, if a supervisor sexually harasses another employee, but the conduct does not result in a tangible employment action against the employee, the employer can avoid liability by showing that the employer exercised reasonable care to prevent and promptly correct sexually harassing behavior, and also by demonstrating that the plaintiff employee unreasonably failed to take advantage of the corrective or preventative opportunities provided by the employer in order to try to stop the harassment. The Supreme Court's rulings give employers a strong means to defend most sexual harassment claims: employers can avoid liability by pointing to their anti-harassment policies and arguing that the employee complaining about the harassment did not adequately report it to the employer. This defense, however, will not be available to California employers. Rejecting the United States Supreme Court's decision as inapplicable under California law, the court in Department of Health Services reiterated the California rule that employers are strictly liable when supervisors engage in sexual harassing conduct in the workplace. This means that in California, employers remain liable for the harassing conduct of their supervisory employees, even though the employer may not know, and may not have reason to know, of the supervisor's conduct, has taken adequate anti-harassment measures, and even, potentially, when the employee does not complain about the conduct.

It is possible that the California Supreme Court will review the Court of Appeal's recent decision. Until then, however, the decision remains the law in California, and employers must be especially vigilant to prevent sexual harassment in the workplace.