California harassment ruling latest example of unhealthy divergence between state and federal discrimination law

Law.com carries this story by Mike McKee for The Recorder: “Employers With Harassment Programs Can Limit Damages.”

“California employers are strictly liable for sexual harassment by supervisors, the state Supreme Court held Monday, but damages can be limited if the harassed employee hasn’t taken reasonable steps to stop the problem.”

“‘Even under a strict liability standard,’ Justice Joyce Kennard wrote for a unanimous court, ‘a plaintiff’s own conduct may limit the amount of damages recoverable or bar recovery entirely.’ ”

“The high court’s ruling holds employers strictly liable under the state’s Fair Employment and Housing Act, but also places some responsibility on the complaining employee by requiring them to comply with the avoidable consequences doctrine. That doctrine says employees must take reasonable steps to minimize harassment — such as reporting to a superior early on — especially when an employer has a program to address harassment.”

“An employee’s failure to report harassment to the employer is not a defense on the merits to the employee’s action under the FEHA, . . . but at most it serves to reduce the damages recoverable.”

“Several amici curiae on both sides of the case had asked the high court to decide whether employers could rely on a newly recognized federal defense to workplace harassment claims. The so-called Ellerth/Faragher defense is based on a couple of 1998 U.S. Supreme Court rulings — Burlington Industries v. Ellerth and Faragher v. City of Boca Raton.”

“In those cases, the nation’s highest court held that under Title VII, the federal anti-discrimination law, an employer cannot be held liable for sexual harassment by a supervisor if reasonable care has been taken to prevent and correct unacceptable behavior, and the complaining employee has failed to take advantage of the company’s anti-discrimination policies.”

“Kennard said there was no need for the court to weigh in on that issue, leaving it, instead, for the state Legislature.”

Sheer hypocrisy! The Cal. Supreme Court deferring to the legislature! As if they were conservatives who opposed the least whiff of judicial activism. As if the California legislature didn’t have bigger fish to fry. Huh? Am I missing something?

Most states have generally followed federal law in developing the law under their own fair employment acts. For good reason: the federal courts hear hundreds, nay thousands, of such cases every year, and are constantly refining very sophisticated legal principles for deciding them. So why complicate things by deviating from that path? Probably because state court judges, even at the Supreme Court level in some states, are much more sympathetic to and influenced by the powerful trial lawyers’ lobby.

One unanticipated consequence: as state laws diverge, they become one more factor causing states such as California and Illinois to be viewed as having a horrible legal climate for employers. The judges are thus shooting their local economies in the foot.

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