{"id":150,"date":"2023-12-06T02:37:28","date_gmt":"2023-12-06T02:37:28","guid":{"rendered":"https:\/\/wrongful-termination-ca.com\/?page_id=150"},"modified":"2023-12-07T00:20:56","modified_gmt":"2023-12-07T00:20:56","slug":"avoidable-consequences-defense-to-sexual-harassment","status":"publish","type":"page","link":"https:\/\/wrongful-termination-ca.com\/index.php\/avoidable-consequences-defense-to-sexual-harassment\/","title":{"rendered":"Avoidable Consequences Defense to Sexual Harassment"},"content":{"rendered":"\n

Avoidable Consequences Defense to Sexual Harassment<\/p>\n\n\n\n

Avoidable Consequences Defense to Sexual Harassment in the Context of Wrongful Termination and Employment Law in California<\/p>\n\n\n\n

Introduction: <\/p>\n\n\n\n

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.<\/p>\n\n\n\n

I. The Avoidable Consequences Defense: <\/p>\n\n\n\n

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.<\/p>\n\n\n\n

II. Legal Implications: A. Reasonable Steps: <\/p>\n\n\n\n

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:<\/p>\n\n\n\n

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

    B. Burden of Proof: <\/p>\n\n\n\n

    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.<\/p>\n\n\n\n

    C. Causation: <\/p>\n\n\n\n

    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.<\/p>\n\n\n\n

    III. Problems that Could Arise: <\/p>\n\n\n\n

    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.<\/p>\n\n\n\n

    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.<\/p>\n\n\n\n

    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.<\/p>\n\n\n\n

    IV. Examples:<\/p>\n\n\n\n

      \n
    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.<\/li>\n\n\n\n
    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. <\/li>\n<\/ol>\n\n\n\n

      Conclusion<\/p>\n\n\n\n

      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.<\/p>\n\n\n\n

      <\/p>\n\n\n\n

      Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen. <\/p>\n\n\n\n

      2526<\/strong>. <\/strong>Affirmative Defense\u2014Avoidable Consequences Doctrine (Sexual Harassment by a Supervisor)<\/strong><\/strong><\/p>\n\n\n\n

      <\/td><\/tr>
      <\/td><\/td><\/tr><\/tbody><\/table><\/figure>\n\n\n\n
      \n

      If [<\/strong>name of plaintiff<\/em>] proves that [<\/strong>name of supervisor<\/em>] sexually harassed [him\/her\/<\/strong>nonbinary pronoun<\/em>], [<\/strong>name of employer defendant<\/em>] is responsible for [<\/strong>name of plaintiff<\/em>]\u2019s harm caused by the harassment. However, [<\/strong>name of employer defendant<\/em>] claims that [<\/strong>name of plaintiff<\/em>] could have avoided some or all of the harm with reasonable effort. To succeed, [<\/strong>name of employer defendant<\/em>] must prove all of the following:<\/strong><\/strong><\/p>\n\n\n\n

        \n
      1. <\/strong>That [<\/strong>name of employer defendant<\/em>] took reasonable steps to prevent and correct workplace sexual harassment;<\/strong><\/strong><\/li>\n\n\n\n
      2. <\/strong>That [<\/strong>name of plaintiff<\/em>] unreasonably failed to use the preventive and corrective measures for sexual harassment that [<\/strong>name of employer defendant<\/em>] provided; and<\/strong><\/strong><\/li>\n\n\n\n
      3. <\/strong>That the reasonable use of [<\/strong>name of employer defendant<\/em>]\u2019s procedures would have prevented some or all of [<\/strong>name of plaintiff<\/em>]\u2019s harm.<\/strong><\/strong><\/li>\n<\/ol>\n\n\n\n

        You should consider the reasonableness of [<\/strong>name of plaintiff<\/em>]\u2019s actions in light of the circumstances facing [him\/her\/<\/strong>nonbinary pronoun<\/em>] at the time, including [his\/her\/<\/strong>nonbinary pronoun<\/em>] ability to report the conduct without facing undue risk, expense, or humiliation.<\/strong><\/strong><\/p>\n\n\n\n

        If you decide that [<\/strong>name of employer defendant<\/em>] has proved this claim, you should not include in your award of damages the amount of damages that [<\/strong>name of plaintiff<\/em>] could have reasonably avoided.<\/strong><\/strong><\/p>\n<\/div>\n\n\n\n

        <\/td><\/tr>
        <\/td><\/td><\/tr><\/tbody><\/table><\/figure>\n\n\n\n

        New April 2004; Revised December 2011, December 2015, May 2020<\/em><\/p>\n\n\n\n

        Directions for Use<\/strong><\/strong><\/p>\n\n\n\n

        Give this instruction if the employer asserts the affirmative defense of \u201cavoidable consequences.\u201d 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<\/p>\n\n\n\n

        avoidable-consequences doctrine is a defense only to damages, not to liability. (State Dept. of Health Services v. Superior Court <\/em>(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, Aff\u0131rmative Defense\u2014Employee\u2019s Duty to Mitigate Damages, <\/em>and CACI No. 3930, Mitigation of Damages (Personal Injury)<\/em>.<\/p>\n\n\n\n

        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.<\/em><\/p>\n\n\n\n

        <\/p>\n\n\n\n

        Abraham Joshua Heschel Day School, Inc. <\/em>(2014) 226 Cal.App.4th 886, 900\u2013901<\/p>\n\n\n\n

        [172 Cal.Rptr.3d 465].)<\/p>\n\n\n\n

        Sources and Authority<\/strong><\/strong><\/p>\n\n\n\n

          \n
        • \u201c[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\u2019s own conduct may limit the amount of damages recoverable or bar recovery entirely.\u201d (State Dept. of Health Services, supra, <\/em>31 Cal.4th at p. 1042, internal citations omitted.)
          • \u201cWe 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.\u201d (State Dept. of Health Services, supra, <\/em>31 Cal.4th at p. 1045, internal citation omitted.)<\/li><\/ul>
            • \u201cUnder the avoidable consequences doctrine as recognized in California, a person injured by another\u2019s 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\u2019s efforts must be judged in light of the situation existing at the time and not with the benefit of hindsight. \u2018The standard by which the reasonableness of the injured party\u2019s efforts is to be measured is not as high as the standard required in other areas of law.\u2019 The defendant bears the burden of pleading and proving a defense based on the avoidable consequences doctrine.\u201d (State Dept. of Health Services, supra<\/em>, 31 Cal.4th at p. 1043, internal citations omitted.)<\/li><\/ul>
              • \u201cAlthough courts explaining the avoidable consequences doctrine have sometimes written that a party has a \u2018duty\u2019 to mitigate damages, commentators have criticized the use of the term \u2018duty\u2019 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.\u201d (State Dept. of Health Services, supra<\/em>, 31 Cal.4th at p. 1043, internal citations omitted.)<\/li><\/ul>\n
                  \n
                • \u201cWe 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\u2019s procedures would<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n\n\n\n

                  <\/p>\n\n\n\n

                  have prevented at least some of the harm that the employee suffered.\u201d (State Dept. of Health Services, supra<\/em>, 31 Cal.4th at p. 1044.)<\/p>\n\n\n\n

                    \n
                  • \u201cThis 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\u2019s internal complaint procedures appropriately designed to prevent and eliminate sexual harassment.\u201d (State Dept. of Health Services, supra, <\/em>31 Cal.4th at p. 1044, internal citations omitted.)<\/li>\n\n\n\n
                  • \u201cIf 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.\u201d (State Dept. of Health Services, supra<\/em>, 31 Cal.4th at p. 1045, internal citations omitted.)<\/li>\n\n\n\n
                  • \u201cWe stress also that the holding we adopt does not demand or expect that employees victimized by a supervisor\u2019s 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\u2019s natural feelings of embarrassment, humiliation, and shame may provide a sufficient excuse for delay in reporting acts of sexual harassment by a supervisor.\u201d (State Dept. of Health Services, supra<\/em>, 31 Cal.4th at p. 1045.)<\/li>\n<\/ul>\n\n\n\n

                    Secondary Sources<\/h1>\n\n\n\n

                    6 Witkin, Summary of California Law (11th ed. 2017) Torts, \u00a7 1798<\/p>\n\n\n\n

                    Chin et al., California Practice Guide: Employment Litigation, Ch. 10-D, Employer Liability For Workplace Harassment<\/em>, \u00b6\u00b6 10:360, 10:361, 10:365\u201310:367, 10:371, 10:375 (The Rutter Group)<\/p>\n\n\n\n

                    2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws<\/em>, \u00a7\u00a7 41.81[7][c], 41.92A (Matthew Bender)<\/p>\n\n\n\n

                    11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination<\/em>, \u00a7\u00a7 115.36[2][a], 115.54[3] (Matthew Bender)<\/p>\n\n\n\n

                    Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen. <\/p>\n","protected":false},"excerpt":{"rendered":"

                    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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"yoast_head":"\nAvoidable Consequences Defense to Sexual Harassment - wrongful-termination-ca.com<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/wrongful-termination-ca.com\/index.php\/avoidable-consequences-defense-to-sexual-harassment\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Avoidable Consequences Defense to Sexual Harassment - wrongful-termination-ca.com\" \/>\n<meta property=\"og:description\" content=\"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. 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