Failure to Pursue Internal Remedies No Bar to Lawsuit Alleging Sexual Harassment, Court of Appeal Rules

Friday, November 30, 2001

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Failure to Pursue Internal Remedies No Bar to Lawsuit Alleging Sexual Harassment, Court of Appeal Rules

By a MetNews Staff Writer

Failure to pursue an employer’s internal remedies for sexual harassment by a supervisor is no defense to an action brought under the Fair Employment and Housing Act, the Third District Court of Appeal ruled yesterday.

“Critical” distinctions between FEHA and its federal counterpart make the so-called Burlington/Faragher defense inapplicable to cases brought under the state statute, Justice Harry Hull wrote for the court.

The ruling is a blow to the state Department of Health Services, which brought a petition for writ of mandate after Sacramento Superior Court Judge John Lewis denied the department’s motion for summary judgment in a suit brought by an employee alleging verbal and physical harassment by her since-retired supervisor.

Theresa McGinnis claims that Cary Hall began harassing her in 1995, although she did not complain until two years later. After she complained to Hall’s superior, the department’s Office of Civil Rights investigated and initiated disciplinary action.

McGinnis sued, alleging that the department was vicariously liable for Hall’s actions. In moving for summary judgment, the department cited Burlington Industries v. Ellerth (1998) 524 U.S. 742 and Faragher v. City of Boca Raton (1998) 524 U.S. 775.

The cases hold that in a sexual harassment suit brought under Title VII of the Civil Rights Act of 1964, an employer which did not take adverse employment action against the plaintiff has a defense if it exercised reasonable care to prevent sexual harassment and the employee unreasonably failed to take advantage of remedies provided by the employer.

Hull acknowledged that federal cases interpreting Title VII are often relied upon in construing parallel provisions of FEHA. But the justice also noted that in the area of sexual harassment, there are differences between the two laws.

FEHA, he noted, outlaws sexual harassment expressly, while Title VII does so only as a matter of judicial interpretation. A most significant difference, he added, is that FEHA explicitly holds employers liable for harassment by supervisors of their subordinates, even when upper management is unaware.

In contrast, Hull noted, when harassment is by a non-supervisory coworker, the employer is liable only if a supervisor knew of the conduct and did nothing about it.

“California law exhibits a clear intent to hold employers strictly liable for the harassing conduct of supervisory employees, even though the employer did not know, and did not have reason to know, of the supervisor’s conduct, and essentially makes the obligation to provide a harassment-free workplace the nondelegable obligation of the employer,” the justice wrote.

The justice agreed with DHS that there may be strong policy reasons for recognizing the Burlington/Farragher defense, such as to encourage employers to adopt strong sexual harassment policies. But there are also strong reasons for imposing liability, such as to place the liability on the shoulders of the employer, who may have greater resources than the harasser.

“Under these circumstances, resolution of this question is best left to the Legislature, not the courts,” the jurist said.

The case is Department of Health Services v. Superior Court, McGinnis, C034163.