DHS

Quackenbush & Quackenbush, William C. Quackenbush; Christopher H. Whelan, for Real Party in Interest.

Certified for Publication. [*]

HULL, J.

In two companion cases, Burlington Industries v. Ellerth (1998) 524 U.S. 742 , 118 S.Ct. 2257 , 141 L.Ed.2d 633 (Burlington) and Faragher v. City of Boca Raton (1998) 524 U.S. 775 , 118 S.Ct. 2275 , 141 L.Ed.2d 662 (Faragher) , the United States Supreme Court outlined a defense available to an employer sued for sexual harassment under 42 U.S.C. § 2000e-2, subdivision (a) (hereafter Title VII). Specifically, if the offending conduct is committed by a supervisor, and if no tangible employment action is taken against the employee, the employer may defend against liability or damages by demonstrating that (1) the employer exercised reasonable care to prevent and promptly correct sexually harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of the corrective or preventive opportunities provided by the employer or otherwise failed to avoid harm. ( Burlington, supra, 524 U.S. at pp. 764-765, 118 S.Ct. at pp. 2270-2271, 141 L.Ed.2d at p. 655; Faragher, supra, 524 U.S. at pp. 807-808, 118 S.Ct. at pp. 2292-2293,…