Avoidable Consequences Defense to Sexual Harassment

Avoidable Consequences Defense to Sexual Harassment in the Context of Wrongful Termination and Employment Law in California

Introduction:

Sexual harassment is a serious issue in the workplace, and California, like many other states, has strict laws in place to protect employees from such behavior. When a supervisor is accused of sexual harassment, it can lead to not only civil liability but also potential criminal charges. In the context of wrongful termination and employment law in California, the “avoidable consequences” defense is a legal argument that employers may use to mitigate their liability in cases involving allegations of sexual harassment by a supervisor. This defense asserts that the victim of harassment failed to take reasonable steps to prevent or mitigate the harm they suffered. In this overview, we will examine the “avoidable consequences” defense, its legal implications, potential problems that can arise, and provide examples to illustrate its application.

I. The Avoidable Consequences Defense:

The “avoidable consequences” defense is grounded in the legal principle that an injured party has a duty to mitigate their damages. In the context of sexual harassment, it argues that the victim failed to take reasonable steps to avoid or lessen the harm they suffered. California law recognizes this defense, but its application can be complex and highly fact-dependent.

II. Legal Implications: A. Reasonable Steps:

To successfully assert the avoidable consequences defense in California, the employer must demonstrate that the victim of sexual harassment did not take reasonable steps to address the issue. Reasonable steps may include:

1. Reporting the harassment to the appropriate channels within the company.
2. Utilizing any available internal complaint procedures or grievance mechanisms.
3. Seeking legal advice or counseling to cope with the harassment.
4. Taking advantage of anti-harassment training or education provided by the employer.

B. Burden of Proof:

The burden of proof rests on the employer to establish that the victim failed to take reasonable steps. They must demonstrate that the victim’s actions or inactions were a substantial factor contributing to their own harm. This burden is significant and often requires a careful examination of the facts and circumstances surrounding the case.

C. Causation:

The employer must also establish a causal connection between the victim’s failure to take reasonable steps and the harm suffered. They must show that if the victim had taken such steps, the harm could have been avoided or mitigated.

III. Problems that Could Arise:

A. Subjectivity: One problem with the avoidable consequences defense is that it can be highly subjective. What may be considered reasonable steps for one person may not be the same for another. This subjectivity can lead to disputes over whether the victim’s actions were genuinely unreasonable.

B. Retaliation Claims: Victims of sexual harassment may fear retaliation if they report the harassment, which can deter them from taking immediate action. This fear can complicate the employer’s argument that the victim failed to take reasonable steps.

C. Lack of Awareness: In some cases, victims may not be fully aware of their rights or the company’s policies regarding harassment. This lack of awareness can affect their ability to take appropriate action.

IV. Examples:

1. Example of Successful Avoidable Consequences Defense: Imagine a scenario where an employee is subjected to inappropriate comments by their supervisor. The victim does not report the harassment to HR or any company authority, nor do they utilize any available internal procedures. In this case, if the employer can show that the victim’s failure to report the harassment allowed it to continue and worsen, they may successfully assert the avoidable consequences defense.
2. Example of Unsuccessful Avoidable Consequences Defense: Consider a situation where an employee repeatedly reports sexual harassment to HR, but the company fails to take any action to stop it. Despite the victim’s diligent efforts, the harassment continues. In this case, it would be challenging for the employer to argue that the victim failed to take reasonable steps to avoid the consequences.

Conclusion

In conclusion, the avoidable consequences defense in sexual harassment cases in California hinges on whether the victim took reasonable steps to prevent or mitigate the harm they suffered. While it is a valid defense, its application can be complex, and it must meet a high burden of proof. Employers must be cautious when relying on this defense, as it may not always absolve them of liability, and it can be subject to various challenges and nuances based on the specific facts of each case.

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2526. Affirmative Defense—Avoidable Consequences Doctrine (Sexual Harassment by a Supervisor)

New April 2004; Revised December 2011, December 2015, May 2020

Directions for Use

Give this instruction if the employer asserts the affirmative defense of “avoidable consequences.” The essence of the defense is that the employee could have avoided part or most of the harm had the employee taken advantage of procedures that the employer had in place to address sexual harassment in the workplace. The

avoidable-consequences doctrine is a defense only to damages, not to liability. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1045 [6 Cal.Rptr.3d 441, 79 P.3d 556].) For other instructions that may also be given on failure to mitigate damages generally, see CACI No. 3963, Affırmative Defense—Employee’s Duty to Mitigate Damages, and CACI No. 3930, Mitigation of Damages (Personal Injury).

Whether this defense may apply to claims other than for supervisor sexual harassment has not been clearly addressed by the courts. It has been allowed against a claim for age discrimination in a constructive discharge case. (See Rosenfeld v.

Abraham Joshua Heschel Day School, Inc. (2014) 226 Cal.App.4th 886, 900–901

[172 Cal.Rptr.3d 465].)

Sources and Authority

• “[W]e conclude that under the FEHA, an employer is strictly liable for all acts of sexual harassment by a supervisor. But strict liability is not absolute liability in the sense that it precludes all defenses. Even under a strict liability standard, a plaintiff’s own conduct may limit the amount of damages recoverable or bar recovery entirely.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1042, internal citations omitted.)
  • “We emphasize 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. The avoidable consequences doctrine is part of the law of damages; thus, it affects only the remedy available. If the employer establishes that the employee, by taking reasonable steps to utilize employer-provided complaint procedures, could have caused the harassing conduct to cease, the employer will nonetheless remain liable for any compensable harm the employee suffered before the time at which the harassment would have ceased, and the employer avoids liability only for the harm the employee incurred thereafter.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1045, internal citation omitted.)
  • “Under the avoidable consequences doctrine as recognized in California, a person injured by another’s wrongful conduct will not be compensated for damages that the injured person could have avoided by reasonable effort or expenditure. The reasonableness of the injured party’s efforts must be judged in light of the situation existing at the time and not with the benefit of hindsight. ‘The standard by which the reasonableness of the injured party’s efforts is to be measured is not as high as the standard required in other areas of law.’ The defendant bears the burden of pleading and proving a defense based on the avoidable consequences doctrine.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1043, internal citations omitted.)
  • “Although courts explaining the avoidable consequences doctrine have sometimes written that a party has a ‘duty’ to mitigate damages, commentators have criticized the use of the term ‘duty’ in this context, arguing that it is more accurate to state simply that a plaintiff may not recover damages that the plaintiff could easily have avoided.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1043, internal citations omitted.)
  • “We hold . . . that in a FEHA action against an employer for hostile environment sexual harassment by a supervisor, an employer may plead and prove a defense based on the avoidable consequences doctrine. In this particular context, the defense has three elements: (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.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1044.)

• “This defense will allow the employer to escape liability for those damages, and only those damages, that the employee more likely than not could have prevented with reasonable effort and without undue risk, expense, or humiliation, by taking advantage of the employer’s internal complaint procedures appropriately designed to prevent and eliminate sexual harassment.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1044, internal citations omitted.)
• “If the employer establishes that the employee, by taking reasonable steps to utilize employer-provided complaint procedures, could have caused the harassing conduct to cease, the employer will nonetheless remain liable for any compensable harm the employee suffered before the time at which the harassment would have ceased, and the employer avoids liability only for the harm the employee incurred thereafter.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1045, internal citations omitted.)
• “We stress also that the holding we adopt does not demand or expect that employees victimized by a supervisor’s sexual harassment must always report such conduct immediately to the employer through internal grievance mechanisms. The employer may lack an adequate antiharassment policy or adequate procedures to enforce it, the employer may not have communicated the policy or procedures to the victimized employee, or the employee may reasonably fear reprisal by the harassing supervisor or other employees. Moreover, in some cases an employee’s natural feelings of embarrassment, humiliation, and shame may provide a sufficient excuse for delay in reporting acts of sexual harassment by a supervisor.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1045.)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1798

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-D, Employer Liability For Workplace Harassment, ¶¶ 10:360, 10:361, 10:365–10:367, 10:371, 10:375 (The Rutter Group)

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.81[7][c], 41.92A (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.36[2][a], 115.54[3] (Matthew Bender)

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.