Chapter Five. Employer and Individual Responsibilities

I. Introduction

The federal Title VII applies to employers with at least fifteen employees, but California FEHA requires just five employees for the employer to be liable for discrimination and only one employee for an employer to be liable for sexual harassment.

This chapter discusses in detail the potential liability for (1) employers, (2) supervisors, (3) non-supervisory personnel and (4) non-employees for sexual harassment in the workplace. Under the federal Title VII, only the employer is liable for sexual harassment in the workplace and the employer’s responsibility is automatic under vicarious liability principles if the harassment is from a supervisor. They are liable on another negligence theory if the harassment is from other employees in the workplace.

Under California FEHA, an employer is automatically (strictly) liable for harassment by supervisors and is liable on a negligence theory for non-supervisory personnel and non-employees.

Under California FEHA, but not under federal Title VII, supervisors and non-supervisory employees can be held individually responsible for sexual harassment.

Non-employees are not liable under the sexual harassment statutes, but they may be held liable for common law torts committed against the victim, such as assault and battery.

This chapter addresses the somewhat expansive definition of a supervisor as applied in sexual harassment law and addresses liability for harassment that takes place outside of the workplace, but is between employees of the same company.

We also make a distinction between individual liability for sexual harassment as opposed to individual liability for retaliation or discrimination under the California FEHA. FEHA holds only the employer responsible for retaliation and discrimination.

The chapter addresses affirmative defenses under both California law and federal law that limits liability for damages under the circumstances where a victim has delayed reporting the harassment to the employer. An employer must show that if the victim had made a timely report of the sexual harassment it is likely the employer would have stopped the harassment and thereby mitigates the damages that the victim suffered. The affirmative defenses provide a mechanism for the employer to avoid part of the liability for damages if the victim delays in reporting the harassment.

The chapter also sets forth the criteria for a victim to obtain an award for punitive damages, which are damages that are designed to punish the defendant and to make an example of the defendant to discourage others from engaging in similar misconduct.

II. Number of Employees Required for Employer Responsibility

A. California Law: One Employee Required for Sexual Harassment, But Five for Discrimination

In California, according to FEHA, five employees are necessary to sue an employer for discrimination, while only one employee is necessary for a viable harassment lawsuit against an employer.

In Janken v. GM Hughes Electronics, the court explained:

A person who regularly employs less than five other persons is not an “employer” for the purposes of FEHA prohibitions on discrimination, and hence cannot be sued for discrimination…. For purposes of harassment, however, “employer” is specially defined in Section 12940… to include any person regularly employing one or more person … and makes clear that this special definition of “employer” as someone employing only one other person applies only to harassment claims, and that discrimination claims continue to be covered by the “five or more” definition in Section 12926, Subdivision (d). The Legislature thus made a clear distinction in California in the treatment of harassment claims versus the treatment of discrimination claims: small employers can be sued for harassment, but they cannot be sued for discrimination.

B. Federal Law: Fifteen Employees Required

In order to bring any Title VII claim against your employer, your employer must employ at least 15 employees. The federal statute, Title VII, defines an “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.”

III. Preventive Measures Required by Employers

The California FEHA states that employers must take all reasonable steps to prevent unlawful harassment. FEHA also requires that employers provide information to their employees concerning unlawful sexual harassment. In fact, employers with at least 50 employees are required to provide a minimum of two hours of training and education concerning unlawful sexual harassment to all supervisory employees in California every two years.

However, you cannot sue an employer for failing to take reasonable steps to prevent harassment unless you have actually suffered harassment.

While there is no parallel federal requirement for mandatory sexual harassment training, EEOC guidelines state:

Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under title VII, and developing methods to sensitize all concerned.

California and federal law are similar in regard to what an employer must do in response to a report of sexual harassment. In 1991, the Ninth Circuit Court, in the case of Ellison v. Brady, found that once an employer discovers that their employee is participating in sexual harassment, Title VII obligates that employer to take remedial action that is reasonably calculated to end the harassment by means of imposing adequate consequences to make certain that the workplace will be free from sexual harassment.

The next year, in Intlekofer v. Turnage, the Ninth Circuit Court further clarified that once an employer knows of sexual harassment, their remedies must be disciplinary in nature, in addition to being reasonably calculated to end the harassment. While no specific remedies or penalties are required, the important thing is that the remedies are appropriate to the facts of the particular situation.

If the remedies put in place by the employer do not result in an end to the harassment, the employer needs to institute harsher disciplinary actions until the harassment stops.

In Bradley v. Department of Corrections & Rehabilitation, the harasser stalked and sexually threatened the victim both at the workplace and off-duty at the victim’s apartment. The employer correctional facility took action by initiating an investigation process. The California Court of Appeal for the Fifth District found that there was “ample evidence” to support the jury’s finding that the correctional facility failed to take immediate and appropriate action as required by law. The Court said: “While we recognize that things move slowly in state government, the lack of action in this case is startling. Numerous people heard Bradley’s complaints yet did nothing to protect her or to stop the harassment.” The Bradley court found that the correctional facility could not rest on its complex investigation process because the law requires “remedial action designed to end the harassment.” (See Section IV (C) of this chapter on liability for off-duty harassment for a further discussion of Bradley v. Department of Corrections & Rehabilitation.)

IV. Who is Liable for Sexual Harassment?

Under federal law (Title VII) only employers can be liable for damages for sexual harassment, but under California law (FEHA), both the employer and the individual harasser can be liable for damages.

In this section, we explain who can be sued for sexual harassment and who will be liable to pay damages to a victim of sexual harassment depending on the facts of the victim’s case. Who you can sue will depend on whether you bring a federal or state claim, and will also depend on whether the harasser was a supervisor, a non-supervisory employee, or a non-employee.

A. Summary of Liability

1. Employer Liability

California law and federal law differ on who is liable for sexual harassment. Under the California law, FEHA, the employer is liable for sexual harassment committed by a supervisor, whether or not the employer knew about the harassment. In State Department of Health Services v. Superior Court, the California Supreme Court concluded that “under 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. If the employer did not know about the harassment in time to take immediate and appropriate corrective action, the employer has a defense called the avoidable consequences defense, which reduces the damages recoverable by the victim. Damages can be reduced only if, taking account of the employer’s antiharassment policies and procedures and its past record of acting on harassment complaints, the employee acted unreasonably in not sooner reporting the harassment to the employer. (See the discussion of affirmative defenses in Section V of this chapter for a further explanation of how employers may limit their liability for damages when a victim delays making a report of the harassment to the employer.)

Under FEHA, the employer is liable for harassment committed by a non-supervisory employee if “the entity, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” This is a negligence standard. Because the employer must be on notice to be found liable, it will help a sexual harassment victim’s case against their employer if the victim has complained to the Human Resources Department or to a supervisor.

Under the federal law in Title VII, the employer is similarly liable for harassment by supervisors. The United States Supreme Court said, “An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.”

The employer has a defense similar to the California defense of avoidable consequences. The federal defense is called the Ellerth/Faragher defense and it is only available where no tangible employment action has been taken against the victim employee. If the employer proves the elements of the defense, the employer is not liable for the damages that the employer could have avoided if the victim had made a timely report of the harassment.

Under federal law, the employer is also liable on a negligence standard for harassment committed by a non-supervisory employee, under the same standard used under California law. So under both federal law and California law, an employer is liable for harassment by a non-supervisory employee or by a non-employee if the employer knows, or should have known, about the harassment, and fails to take immediate and appropriate corrective action.

Also an employer can be found liable under both federal and California law for harassment by a non-employee such as a vendor or customer, on a negligence standard. FEHA and EEOC guidelines included in the Code of Federal Regulations contain nearly identical language concerning employer liability for non-employees. FEHA at California Government Code, Section 12940 (j) (1), states:

An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, or persons providing services pursuant to a contract in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.

However, for harassment by non-employees, the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of those non-employees will be considered.

Cases of harassment by non-employees have arisen as a result of harassment by vendors, prison inmates, couriers, repair service workers, patients, customers, and clients.

CASE IN POINT: Employer Liable for Harassment of Prison Employee by Prison Inmates

In Freitag v. Ayers, the federal Ninth Circuit Court found that the California Department of Corrections and Rehabilitation could be held liable for hostile work environment sexual harassment for failing to take steps to attempt to correct the sexual harassment a female prison guard suffered from male prison inmates. The Ninth Circuit Court said:

In the Ninth Circuit, employers are liable for harassing conduct by nonemployees “where the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct.”… This theory of liability is not grounded in the harassing act itself,–i.e., inmate misconduct–but rather in the employer’s “negligence and ratification” of the harassment through its failure to take appropriate and reasonable responsive action.

This decision is based on the failure of the employer, in this case the correctional facility, to take action in an attempt to prevent the repeated harassment. The Ninth Circuit may not have found the correctional facility could be liable if the facility had taken reasonable attempts to prevent the harassment, even if reasonable efforts had failed and harassment by inmates continued.

There is an instructional comparison between the Freitag case and the Lyle case referred to in Chapter Two, which we also refer to as the Friends case because the plaintiff was a former employee of the production team for the TV sitcom, Friends. In the Freitag case, a female prison guard made repeated complaints to management about the sexual harassment she was suffering as a result of the vulgar behavior of certain inmates. In particular, Freitag complained about exhibitionist masturbation by inmates directed to female prison guards. In the Friends case, the female employee also complained about such things as feigned masturbation by some of the male writers.

In Friends the California Supreme Court found that the employer could not be held liable for the sexually coarse and vulgar language by its male writers, because the language was not aimed at the plaintiff or other women in the workplace and because the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes. The California Supreme Court noted that when the plaintiff in the Friends case was hired, she had been forewarned that the show dealt with sexual matters and that, as an assistant to the comedy writers, she would be listening to and transcribing sexual jokes and discussions about sex.

In the Freitag case, the court acknowledged that female prison guards who took jobs at correctional facilities for men knew they were entering an inherently hostile work environment and were subjecting themselves to inappropriate and socially deviant behavior by prisoners. One distinguishing characteristic between the Friends case and Freitag, is that in Freitag the sexual harassment was directed to the female employee. Another distinction is that the severity and threatening nature of the harassment was much greater in the Freitag case. Nonetheless the main distinction between the Friends case and Freitag is that in Freitag the female prison guard made repeated complaints to her employer about the harassment and her employer did nothing to help her or to stop the harassment. The correctional facility refused to punish the prison inmates who were harassing her.
The Freitag case should not be read to mean that all prison employees can now successfully sue their employers for harassment by prison inmates, but instead should stand for the proposition that an employer’s “negligence and ratification” of sexual harassment through failure to take appropriate corrective actions will give rise to liability.

2. Individual Liability

California law and federal law differ on individual liability for sexual harassment.

Under federal law, there is no individual liability for any claims under Title VII. Therefore, only the employer is liable under federal law. In Miller v. Maxwell’s International, the Ninth Circuit Court of Appeals confirmed that supervisors and employees are not personally liable for violations of Title VII.

However, individual harassers can be found personally liable for any torts committed against the victim, including but not limited to infliction of emotional distress, defamation, invasion of privacy, assault and/or battery. (See further discussion in Chapter Seven on infliction of emotional distress and other torts.)
Under California law, both supervisory and non-supervisory employees are individually liable for sexual harassment. FEHA specifically states that “any employee of an entity subject to FEHA is personally liable for their own unlawful sexual harassment.” The risk in suing the offending supervisor or coworker individually for sexual harassment is that the harasser may not be financially able to pay damages. It is typical to sue both the employer and the individual harasser if the facts of your case allow it. Suing both makes it is easier to collect from whichever party has insurance or the requisite funds to pay a settlement or judgment.

Supervisors are also individually liable for aiding and abetting sexual harassment of an employee; a supervisor may aid and abet sexual harassment by becoming aware of the harassment and failing to take action to stop the harassment, as stated in Matthews v. Superior Court. In light of the California Supreme Court case of Jones v. The Lodge at Torrey Pines Partnership, which held that “person” in the FEHA provision prohibiting retaliation includes employers, but not supervisors or other employees, it is uncertain whether or not non-supervisory employees may also be individually liable for aiding and abetting sexual harassment. Furthermore, liability for non-supervisory employees for aiding and abetting is uncertain because generally only supervisors are responsible for taking steps to avoid and to stop sexual harassment.

FEHA does not provide for individual liability for non-employees who sexually harass someone at another’s workplace. California law, FEHA at Government Code Section 12940 (j) (3), allows only for “An employee of an entity subject to this subdivision” to be personally liable for harassment. However, individual harassers risk liability for other common law tort claims, such as claims for assault, battery, invasion of privacy, defamation, intentional infliction of emotional distress and negligent infliction of emotional distress.

B. What is a “Supervisor?”

While Title VII does not explicitly define the term “supervisor,” the EEOC has defined a “supervisor” for the purposes of a Title VII claim as someone with authority to recommend “tangible employment actions” or someone who has the authority to direct the employee’s daily work activities.

A “tangible employment action” is a substantial modification to one’s employment status, such as hiring, firing, promotion, demotion, reassignment to an unwanted position, or a significant change in pay, benefits, or work assignment.

In California sexual harassment law, the word “supervisor” has a specific legal meaning. According to FEHA at California Government Code, Section 12926 (r), “supervisor” means:
any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

In this specific legal context, someone does not need to be wholly responsible for your performance or work product to be considered a supervisor, as explained in the following Case In Point.
CASE IN POINT: Person Need Not Be Wholly Responsible for Employee’s Work Product to be Considered Supervisor Under FEHA

In Chapman v. Enos, the plaintiff, April Chapman, worked for the major fraud unit for Sonoma County and sued for sexual harassment by Mr. Enos, the deputy district attorney assigned to the unit. On the issue of whether Enos was April’s supervisor, the Court of Appeal for the First Appellate District of California found that someone does not need to be wholly responsible for an employee’s performance or work product to be considered a supervisor. The Court explained:

[W]hile full accountability and responsibility are certainly indicia of supervisory power, they are not required elements of … the FEHA definition of supervisor. Indeed, many supervisors with responsibility to direct others using their independent judgment, and whose supervision of employees is not merely routine or clerical, would not meet these additional criteria though they would otherwise be within the ambit of the FEHA supervisor definition.

C. Liability for Off-Duty Harassment

Employers are not liable for off-duty harassment by the victim’s supervisor if there is not an adequate connection between the supervisor’s harassing behavior and his or her employment. The California Supreme Court, in State Department of Health Services v. Superior Court, explained that strict liability analysis of an employer’s liability for harassment on the part of a supervisor “… assumes the supervisor is acting in the capacity of supervisor when the harassment occurs. The employer is not strictly liable for a supervisor’s acts of harassment resulting from a completely private relationship unconnected with the employment and not occurring at the workplace or during normal working hours.”

CASE IN POINT: Employer Avoids Strict Liability When Harassment Results From Private Relationship Unconnected with Employment

In Myers v. Trendwest Resorts, Inc., the plaintiff sued for sexual harassment including unwanted groping. The Court of Appeal for the Third Appellate District of California stated:
in order for the employer to avoid strict liability for the supervisor’s actions under FEHA, the harassment must result from a completely private relationship unconnected with the employment. Otherwise, the employer is strictly liable for the supervisor’s actions regardless of whether the supervisor was acting as the employer’s agent….
Here, the harassment did not result from a completely private relationship unconnected with the employment.

In this case, there was no personal dating relationship between plaintiff and the harasser at the time of the most significant incidents of harassment, which occurred during work-related driving excursions. As a result, the Myers court found that the employer was strictly liable in this case.

While Myers involved sexual harassment committed by a supervisor, it would seem only logical that employers are similarly not liable for off-duty harassment by a non-supervisory employee if there is not an adequate connection between the harassment and the employment.

Certainly, there is no employer liability for sexual harassment committed against an employee by a non-employee that takes place off duty and without an adequate connection to the employment.

In the following Case In Point, a non-supervisory employee sexually harassed a coworker off-duty, making sexual threats and stalking her, but also participated in less severe harassment of the victim at the workplace. In this situation, where the harassment was extremely threatening, the victim had made numerous complaints to the employer, and the employer had initiated an investigation based on the complaint but had not taken steps to stop the harassment or protect the victim, the court found that there was ample evidence to support the jury’s finding that the employer was liable for failing to take immediate and appropriate action.

CASE IN POINT: Employer Must Take Immediate and Appropriate Corrective Action When Employee Suffers Off-Duty Stalking Plus Less Severe On-Duty Harassment

In Bradley v. Department of Corrections & Rehabilitation, the plaintiff, Sallie Mae Bradley, was a female social worker employed at the California Department of Corrections and Rehabilitation. The harasser, Omar Shakir, was a non-supervisory employee working as the prison’s Muslim chaplain.
Shakir stalked Sallie Mae when they were off-duty, going to her apartment almost nightly, chanting and pounding on her door and making threatening sexual propositions. Shakir’s off-duty stalking of Sallie Mae was accompanied by harassment at work. Sallie Mae made multiple complaints to various supervisors at the prison, and an investigation was initiated by the prison, but no action was taken to make sure that Sallie Mae was safe or to stop Shakir from harassing her at work.

The defendant correctional facility urged the Bradley court to “dissect the parties overall behavior” and argued that “because the more serious behavior happened off premises, it was not required to address what it classified as insignificant behavior onsite.” The Bradley court disagreed with the defendant’s argument. The Bradley court stated, “Shakir was engaged in classic stalking behavior, terrorizing, intimidating, and humiliating Bradley and taking full advantage of his free access to her at work to accomplish his inappropriate goals.”

Not only did the Bradley court find evidence to show that the prison should have taken steps to end the harassment that took place at the workplace, but also that the prison should have helped the victim to serve her restraining order on the harasser to put an end to stalking outside of work.

This case may have resulted differently if the harassment had not been so threatening and extreme.

D. No Individual Liability for Retaliation or Discrimination

It is important to note that while the law in California allows for individual liability for harassment, California does not allow for individual liability for discrimination or for retaliation, with the possible exception that a harasser could be liable for retaliation that follows or is a part of harassing conduct; the law in this regard is currently unsettled.

CASE IN POINT: Generally, No Individual Liability for Retaliation

In 2008, the Supreme Court of California, in Jones v. The Lodge at Torrey Pines Partnership, found that individuals may not be held personally liable for retaliation. In that case, the plaintiff, Jones, was found to have been discriminated against on the basis of his sexual orientation and also that he was retaliated against. The California Supreme Court found that while Jones could recover damages for his retaliation action against his employer, he could not recover damages against the individual supervisor who retaliated against him.

However, the Court left open the question about whether there are any instances in which the plaintiff may in fact recover from an individual sued for retaliation. The Court states: “We express no opinion on whether an individual who is personally liable for harassment might also be personally liable for retaliating against someone who opposes or reports that same harassment.” The Supreme Court left open the possibility that an individual harasser may be personally liable for retaliation. Because a supervisor or coworker who sexually harasses an employee is personally liable for sexual harassment, the Supreme Court may in the future hold that the personal liability of a harasser also extends to subsequent retaliatory actions, either under the concept of the retaliation being a continuing part of the harassment or under the concept that the legislative intent for harassers to be personally liable extends into the section of the FEHA that prohibits retaliation.

V. Affirmative Defenses Limiting Liability for Damages When the Victim Delays Reporting the Harassment

Defendants in most cases, including harassment cases, generally deny the allegations of the plaintiff in the defendant’s formal answer to the plaintiff’s complaint. As an additional part to an answer to a complaint, defendants are required to specify their legal defenses to the plaintiff’s complaint; these are called affirmative defenses, and they must be specifically raised by the defendant. One example of an affirmative defense is that the plaintiff’s complaint is barred by the applicable statute of limitations.

Under California law, there is an affirmative defense to limit damages in harassment actions called the avoidable consequences defense, which an employer may raise when a sexual harassment victim delays reporting the harassment to the employer.

A. California Avoidable Consequences Defense

California courts have recognized that a defending employer has the ability to plead an affirmative defense in sexual harassment and discrimination cases under the Avoidable Consequences Doctrine. Under this doctrine, if a victim of sexual harassment delays or fails to complain to the employer or fails to make timely use of the employer’s sexual harassment policy, the defendant employer can bring the affirmative defense that they are not liable for damages that could have been avoided by the victim, if the victim had made a timely report of the harassment.

The Judicial Council of California Civil Jury Instructions (CACI) are the official civil jury instructions and verdict forms approved by the Judicial Council of California. These jury instructions state what will need to be proven at trial to succeed on a cause of action or on an affirmative defense in California courts.

CACI 2526, is the California jury instruction which governs the affirmative defense for Avoidable Consequences. CACI 2526 states the three elements that must be proven to limit damages with an avoidable consequences affirmative defense:

  1. That defendant took reasonable steps to prevent and correct workplace sexual harassment;
  2. That plaintiff unreasonably failed to use defendant’s harassment complaint procedures or the preventative and corrective measures that defendant provided; and
  3. That the reasonable use of defendant’s procedures would have prevented some or all of plaintiff’s harm.

CASE IN POINT: California Affirmative Defense for Harassment Cases

In State Department of Health Services v. Superior Court (McGinnis), the plaintiff, Theresa McGinnis, waited 20 months before reporting the sexual harassment she faced to her employer. Once the employer received her complaint, they investigated the complaint and took disciplinary action against the harasser. At the trial for hostile work environment sexual harassment, the employer brought an affirmative defense, arguing that because McGinnis failed to make timely use of the employer’s sexual harassment procedure, they were not liable for damages. The Supreme Court of California ruled that although employers are strictly liable for harassment by supervisors, employers can limit their liability under the common law affirmative defense of avoidable consequences. The Supreme Court of California explains:
in a FEHA action against an employer for hostile work environment 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.

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.

The California Supreme Court notes that the avoidable consequences defense only allows the limitation of damages, and stresses the fact that employers are still strictly liable for sexual harassment committed by supervisors. The Court states:

We emphasize that the defense attacks 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 the 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.

The sexual harassment victim’s actions need only be “reasonable,” and the California Supreme Court notes:

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 from 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. The employee’s conduct is judged against a standard of reasonableness, and this standard “is not as high as the standard required in other areas of law.”

Even though, technically, reporting harassment to a supervisor is good enough under FEHA to give the employer notice of the harassment, as a practical matter, if your supervisor is the harasser you should report the harassment to the Human Resources Department.

B. Federal Defense for Limiting Liability for Damages

Under federal law, there also is a defense that may limit damages as a result of a victim’s delay in reporting harassment to the employer. In sexual harassment cases where no tangible employment action had been taken against the plaintiff, the defendant employer can raise the Ellerth/Faragher affirmative defense described in the following Cases In Point. Under this defense the employer is required to prove that they exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. The defense limits the employer’s damages; so that if the employer proves the elements of the defense, the employer is not liable for the damages that the employer could have avoided if the victim had made a timely report of the harassment.

CASES IN POINT: Ellerth/Faragher Affirmative Defense Under Federal Law

The United States Supreme Court, in companion decisions decided on the same day, explained the affirmative defense available to employers sued under Title VII. These two cases are Burlington Industries, Inc. v. Ellerth, and Faragher v. City of Boca Raton, and therefore the affirmative defense has come to be known as the Ellerth/Faragher defense.

The United States Supreme Court explained the two-prong affirmative defense available to employers in sexual harassment cases where no tangible employment action has been taken against the plaintiff. In such cases, the employer can limit their liability by showing 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 preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

When sexual harassment results in a tangible employment action, the employer is not allowed to claim the Ellerth/Faragher affirmative defense.

A “tangible employment action” is a significant change in employment status. Examples of tangible employment actions are hiring, firing, promotion, demotion, reassignment to an unwanted position, and a significant change in pay, benefits, or work assignment.

VI. Punitive Damages

Punitive damages are damages which are meant to punish the defendant for his misconduct and to make an example of the defendant in order to deter others from similar misconduct.

A. California Law

According to California Civil Code, Section 3294 (b), employers are not liable for punitive damages for an employee’s harassing conduct unless the employer, “had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others; or authorized or ratified the wrongful conduct for which the damages are awarded; or was personally guilty of oppression, fraud, or malice.”

In order for a corporate employer to be liable for punitive damages, the required action by the employer must have been performed by an officer, director, or managing agent of the corporation.

B. Federal Law

Under the Civil Rights Act of 1991, which amended Title VII, punitive damages are available in Title VII claims. The United States Supreme Court in Kolstad v. American Dental Association states:
Punitive damages are limited … to cases in which the employer has engaged in intentional discrimination and has done so “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.”

The United States Supreme Court went on to explain:

We have concluded that an employer’s conduct need not be independently “egregious” to satisfy… requirements for a punitive damages award, although evidence of egregious misconduct may be used to meet the plaintiff’s burden of proof.

VII. Conclusion

Under the California FEHA, an employer must have at least five employees to be liable for discrimination, but just one for sexual harassment. Under the federal Title VII an employer must have at least fifteen employees for liability.

FEHA provides for both the liability of an employer as well as the liability of individual employees who are responsible for sexual harassment in the workplace. Under Title VII only employers are liable for sexual harassment. Employers can be held responsible for negligent failure to take steps to prevent harassment of employees by non-employees, such as vendors or customers. Employers can even be liable for off-duty sexual harassment committed by employees if there is an adequate connection between the harassing behavior and the employment.

Although non-employees are not liable under either federal or California sexual harassment statutes, non-employees may be held liable for common law torts committed against the victim, such as assault and battery.

If an employee delays in reporting sexual harassment, the employer can claim an affirmative defense that limits the damages to the employer under the theory that the employer would have been able to stop the sexual harassment and mitigate damages of the victim.

Finally, a victim can be awarded punitive damages under both California and federal law.

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