In what could be a landmark ruling, an intermediate appellate court in California has made it easier to hold employers liable under California state law than under federal law for sexual harassment of employees by supervisors.
In Department of Health Services v. Superior Court (McGinnis), 113 Cal.Rptr.2d 878 (Cal.App. 2001), plaintiff McGinnis alleged that, for a long period of time, she had been sexually harassed by her supervisor. The harassment allegedly included inappropriate comments and physical touching. Plaintiff finally told her employer about the harassment after it had been going on for more than two years. The employer promptly conducted an investigation, found the sexual harassment charges to be true, and disciplined the supervisor.
Under federal law (Title VII), an employer can avoid liability for sexual harassment of an employee by a supervisor if (1) the employer took reasonable steps to prevent or correct the harassment, and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. This is the so-called Faragher/Ellerth affirmative defense, based on companion cases decided by the U.S. Supreme Court in 1998.
In McGinnis, the employer had a comprehensive anti-harassment policy and program in place that was designed to prevent sexual harassment, but plaintiff McGinnis failed to complain in a timely manner about her supervisor's sexual harassment. Thus, under federal Title VII, plaintiff McGinnis' delay in reporting the harassment likely would have been fatal to her claim.
Prior to McGinnis, the federal Ninth Circuit Court of Appeals had predicted that California state courts would also apply Faragher/Ellerth to sexual harassment claims brought under state law – California's Fair Employment and Housing Act ("FEHA"). Kohler v. Inter-Tel Technologies, 244 F.3d 1167, 1176 (9th Cir. 2001).
However, in McGinnis, the California Court of Appeal disagreed with the Ninth Circuit. The California court held that Faragher/Ellerth did not apply to FEHA claims, observing that, under FEHA, an employer is strictly liable for sexual harassment committed by an employee's supervisor. The court stated that the Faragher/Ellerth affirmative defense was inconsistent with such strict liability and, therefore, it was up to the California legislature, not the courts, to provide such a limitation on an employer's statutory liability for a supervisor's harassment.
Unless overruled by the California Supreme Court, under McGinnis, the law in California is that an employer is strictly liable for the harassing conduct of its supervisory personnel, even if the employer did not know, and did not have reason to know, of the harassing conduct.
Some other states' courts, including Michigan, Illinois, Massachusetts, and Missouri, have similarly declined to apply
Faragher/
Ellerth to state law claims. However, Oregon and Washington, as well as Texas and Tennessee, do apply
Faragher/Ellerth to state law claims.
See Oregon Administrative Rule 839-005-0030(5)(b)(A) & (B);
Henningsen v. Worldcom, Inc., 9 P.3d 948 (Wash.Ct.App. 2000);
Sangster v. Albertson's, Inc., 991 P.2d 674 (Wash.Ct.App. 2000).