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Clifford v. American Drug Stores8/22/2005
me Court, which held that when an employer is vicariously liable for sexual harassment and "no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. . . . [Citation.] The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." (Faragher v. City of Boca Raton (1998) 524 U.S. 775, 777-778 (Faragher); Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742 (Ellerth).)
Sav-On recognizes that the proffered instructions are incorrect when measured by the recent California Supreme Court opinion in State Dept. of Health Services v. Superior Court (McGinnis) (2003) 31 Cal.4th 1026 (McGinnis). The court held that unlike under Title VII, "an employer is strictly liable under the FEHA for sexual harassment by a supervisor." (Id. at pp. 1040-1041.) But the analysis of California law in Faragher and Ellerth led the California Supreme Court to a similar conclusion under the FEHA with regard to the avoidable consequences doctrine. (Ibid.) It held that "the avoidable consequences doctrine applies to damage claims under the FEHA, and that under that doctrine a plaintiff's recoverable damages do not include those damages that the plaintiff could have avoided with reasonable effort and without undue risk, expense, or humiliation." (Id. at pp. 1034, 1042.)
The court formulated three elements, similar to those in Faragher and Ellerth, for the avoidable consequences defense to a sexual harassment claim: "(1) the employer took reasonable steps to prevent and correct workplace sexual harassment; (2) the employee unreasonably failed to use the preventive and corrective measures that the employer provided; and (3) reasonable use of the employer's procedures would have prevented at least some of the harm that the employee suffered." (McGinnis, supra, 31 Cal.4th at p. 1044.)
The court made it clear, however, that "the defense affects damages, not liability. An employer that has exercised reasonable care nonetheless remains strictly liable for harm a sexually harassed employee could not have avoided through reasonable care." (McGinnis, supra, 31 Cal.4th at p. 1045.) Sav-On's instructions adequately stated the elements of the defense, but erroneously instructed that proof of the elements would preclude liability by establishing a complete defense.
Sav-On contends that it was entitled to instructions on its avoidable consequences defense, even if its proposed instructions were not in the words of McGinnis, because McGinnis had not yet been decided at the time of trial in this case, and it therefore had no way of knowing that the Califo
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