A CALIFORNIA COURT TAKES A STAND AGAINST SEXUAL HARASSMENT, MAKING A STATE LAW CLAIM EASIER TO BRING THAN A FEDERAL CLAIM

In what has the potential to be a landmark ruling, an appellate court in California made it much easier to hold employers liable for sexual harassment by supervisors under state law than it is under federal law. The court did so by refusing to recognize an affirmative defense that federal law allows employers to invoke.

The ruling should be applauded - and other states should follow suit - for the affirmative defense was unjust for plaintiffs. It is unfortunate that it is a part of federal law, and states are wise not to copy the federal model on this point.

The California Lawsuit

In the California suit that led to the ruling, Theresa McGinnis made claims against her employer, the California Department of Health Services (DHS). Her claims were brought pursuant to California's Fair Employment and Housing Act (FEHA). FEHA is a state anti-discrimination law similar in many respects to Title VII, the federal law prohibiting employment discrimination on the basis of sex as well as other protected characteristics.

In her complaint, McGinnis alleged that she had been sexually harassed for an extended period of time by her supervisor. According to her allegations, the harassment ranged from inappropriate comments to physical touching and lasted for several years.

During that time, McGinnis confided in a coworker. However, she did not complain to management until the harassment had continued for more than two years. When she did bring the harassment to the attention of her employer, the claim was investigated and found to be true, and the supervisor was disciplined.

DHS moved for summary judgment, arguing that the Court should apply Title VII standards to McGinnis' similar FEHA claim. Under those standards, McGinnis would clearly lose her case because she took so long to complain. The question for the appellate court in McGinnis was whether California's law required the same result that federal law would have.

Standards for Employer Liability under Title VII

To understand what was at stake in McGinnis's case, it is importance to understand the federal standards that the defendants argued California should copy. The Supreme Court recently decided two cases, Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, which set forth the standards for employer liability for sexual harassment claims made pursuant to Title VII.

For harassment committed by supervisors, the Court held that employers are automatically liable if the harassment culminates in a tangible employment action. For example, if a supervisor fires a subordinate employee because she will not sleep with him, the employer would be automatically liable for the supervisor's conduct--no questions asked.

But suppose supervisory harassment does not result in a tangible employment action - that is, when it is hostile environment harassment, so instead of firing an employee for refusing to sleep with him, the supervisor instead gropes her and makes suggestive comments. In that situation, the Court held, an employer has the opportunity to make out a two-prong affirmative defense.

If it proves the defense, it can escape liability or obtain a reduction in damages. To establish the defense, the employer must show that (1) it took reasonable measures to prevent and correct harassment; and (2) the victim unreasonably failed to avail herself of grievance procedures.

The first prong of the affirmative defense in effect requires proof that the employer maintained an effective anti-harassment policy, and perhaps that the employers took other preventative measures. (Examples include providing employees with anti-harassment training, and carefully monitoring and/or screening supervisory employees.)

The second prong of the affirmative defense involves proof that the victim failed to report the harassment, or waited a long time before doing so.

Why McGinnis Would Probably Have Lost Under the Title VII Standard

McGinnis would almost certainly lose under the Title VII standard. First of all, because she did not suffer a tangible employment action (like being fired) as a result of her supervisor's harassment, DHS would have the opportunity to raise and prove the affirmative defense. Moreover, DHS might have been able successfully to do so.

To satisfy the first prong, DHS could have shown that it had developed a comprehensive policy and program designed to prevent and combat sexual harassment. To satisfy the second prong, it could have pointed to McGinnis' failure to complain in a timely manner.

McGinnis' delay in complaining thus might have been fatal to her claim. Indeed, even if McGinnis had complained right when the harassment commenced, she might still have lost under Title VII's standards.

Although the affirmative defense contains two prongs, many courts, contrary to the Supreme Court's clear mandate, have expressly or implicitly done away with the second prong--asking instead only whether the employer made a good-faith effort to prevent and correct harassment. Since DHS apparently did so, it probably would have won before such a court.

Those courts that choose to ignore the second prong of the affirmative defense permit many employers who take some basic precautionary measures to escape liability - and they do so even where the victim is able to prove the existence of a supervisor-created hostile environment.

Standards for Employer Liability under California Law

Should Title VII standards have been imported into the California sexual harassment law under which McGinniss sued? Some would argue that they should. After all, the similarities in purpose and structure between state anti-discrimination laws and Title VII has led many state courts to apply rules developed under Title VII to claims under state law. And California itself has, in other instances, interpreted Title VII and FEHA to apply in similar ways.

But the California court in McGinnis held that the two statutes are not identical, and, more importantly to the plaintiff in this case, are not coextensive for purposes of holding employers liable for supervisory harassment. Specifically, it held that the Burlington/Ellerth affirmative defense does not apply to claims under FEHA. Thus, under California law, an employer is strictly liable--with no defenses--for all harassment committed by a supervisor, not just when it results in a tangible employment action.

The Court supported its decision by pointing to compelling differences between Title VII and FEHA. First, FEHA specifically outlaws sexual harassment, whereas Title VII simply has a blanket prohibition on sex discrimination, which courts have interpreted to include sexual harassment.

Second, the ban on harassment applies to every employer, while FEHA's other provisions apply only to employers with at least five employees, and Title VII applies only to employers with at least 15 employees. The especially broad coverage for sexual harassment indicates a strong legislative intent to fight harassment.

The Court also found relevant a comparison between the provision at issue and another provision unique to California's law. A FEHA provision states that employers shall be held liable for harassment by an employee other than a supervisor, only if they knew or should have known of the conduct and failed to stop it. This provision, then, expressly makes an employer's conduct and knowledge relevant in the case of co-worker harassment, imposing a limitation on liability. (The same standard is applied under federal law to claims of co-worker harassment; however, there is no express statutory provision to this effect in Title VII.)

The Court noted that there is no similar express reference to intent or conduct with respect to claims of supervisors' harassment. It concluded that, therefore, there was no limitation of liability based on intent or conduct when claims of supervisors' harassment are concerned.

The logic, familiar to lawyers, was that if the legislature had wanted to impose this limitation of liability, it clearly would have done so - after all, it imposed exactly that limitation with respect to another provision. Comparing the provisions, it becomes relevant that one is silent on exactly the topic to which the other directly speaks. The silence thus seems intentional.

With this ruling, the California court joined what appears to be the majority in a rash of recent state cases considering the applicability of the affirmative defense to anti-discrimination claims brought under state law. Thus far, courts in Michigan, Missouri, Massachusetts, and Illinois have reached a similar result.

However, courts in Tennessee and Texas have incorporated the affirmative defense into their own anti-discrimination provisions. We can expect to see a decision on this issue from almost every state in the coming years.

The Problem with the Affirmative Defense

By rejecting the affirmative defense, the McGinnis court precludes the unfairness it creates. The affirmative defense is vulnerable to attack on many grounds.

First, it clearly undermines Title VII's goal of compensation, by depriving plaintiffs who have proven themselves the victim of illegal harassment of a remedy. It also removes an additional incentive for employers to screen supervisors carefully before hiring and monitor them while on the job.

In addition, the second prong of the affirmative defense, which penalizes victims who do not complain immediately upon being harassed, is utterly inconsistent with the reality of victim response. Empirical studies show that direct confrontation and formal complaints are the least likely avenues for a sexual harassment victim to pursue.

Because they fear retaliation or ostracism by co-workers, or because they lack the self-esteem to aggressively go after a supervisor by reporting their boss to the company, many victims are likely to keep quiet and try to cope with harassment. They shouldn't lose their claims because of this perfectly normal reaction.

Finally, the affirmative defense simply misallocates the risk of harm to the victim-employee. Unfortunately, at least some level of harassment is likely to occur even if reasonable measures are taken to prevent and correct it. Given that fact, it is more appropriate that the corporate employer should bear the loss, than that the more vulnerable individual employee bear it.

Not only is the employer typically in a better economic position to bear the risk, but it also is the one who has hired the harassing supervisor and put the supervisor in a position that made the harassment possible.

The Importance Of The McGinniss Ruling

Critics may point out that the McGinniss ruling gives plaintiffs an incentive to pursue their claims of sexual harassment under state as well as federal law. But plaintiffs' pursuing parallel claims is hardly a new phenomenon. Other differences between state and federal law have already made state law at times more appealing to plaintiffs.

Moreover, any competent lawyer would advise his plaintiff to include in her complaint all claims for which she has a basis. Then if interim developments in the law weaken some claims and strengthen others, or if the judge dismisses some claims on technicalities, the plaintiff is protected.

One key difference between federal and state law that already motivates plaintiffs to plead both federal and state claims relates to damage caps. Title VII imposes caps on damages based on the size of the defendant-employer ($300,000 per plaintiff for the largest employers), while most state laws do not. Thus, one of the first big sexual harassment verdicts--$ 6 million awarded to a legal secretary who was harassed by a law firm partner--was the result of a California law claim, not a Title VII claim.

Plaintiffs now have one more incentive--in California and the other states boasting similar rulings--to pursue their claims under state as well as federal law. This is as it should be, since the Title VII affirmative defense was an unfair limitation on plaintiffs who are now fortunate to have a California law alternative.