As reported in the Morrison & Foerster Employment Law Commentary of July 1998, the U.S. Supreme Court determined over three years ago that an employer can avoid liability for hostile environment harassment based on the conduct of a supervisor by showing that it had appropriate anti-harassment policies and procedures in place but that the alleged victim unreasonably failed to avail him or herself of them. See, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
Last week, however, a California appellate court determined that this affirmative defense recognized by the U.S. Supreme Court in Title VII cases is not available in a similar sexual harassment case brought under California's Fair Employment Housing Act. In Department of Health Services v. Superior Court of Sacramento County (November 29, 2001), the court held that an employer is strictly liable for the harassing conduct of its supervisors that creates a hostile environment even if the employer did not know or have a reason to know of the conduct and despite any preventative measures that it has taken. This decision is the latest example of why California's labor and employment laws are widely known as the most onerous and employee-friendly in the nation.
The beginning of a new year generally is a good time for employers to review and update personnel policies and procedures. This is all the more true for 2002 given the greater potential for employer liability after the Department of Health Services decision. Employers in the rest of the country may be able to avoid liability for the harassing conduct of supervisors by asserting the defense noted by the U.S. Supreme Court in Burlington and Faragher. But after Department of Health Services, the only way that an employer can avoid such liability under California state law is to prevent supervisors from engaging in harassing conduct in the first place. The most effective tool for accomplishing this goal is preventative training.
The labor and employment group at Morrison & Foerster LLP stands ready to assist in any aspect of your personnel needs. Now, in particular, we encourage you to contact your MoFo labor lawyer to confirm whether your current programs include appropriate supervisory training.