State Department of Health Services v. Superior Court

As the majority states: “In structuring the [Fair Employment and Housing Act (FEHA)], the Legislature has not expressly incorporated or excluded the avoidable consequences doctrine, thus leaving its application to be determined by the courts.” (Maj. opn., ante, at p. 1047.) I agree with this statement, and with the majority opinion in general. But I would also add that the Fair Employment and Housing Commission (FEHC) may also have a role to play in determining how the avoidable consequences doctrine is to be applied under the FEHA.

The Legislature has authorized the FEHC to “adopt, promulgate, amend, and rescind suitable rules, regulations, and standards (1) to interpret, implement, and apply all provisions of this part [i.e., the FEHA] . . . .” (Gov. Code, § 12935, subd. (a).) The majority assumes that application of the avoidable consequences doctrine to the supervisorial sexual harassment context is appropriate and workable. I have no reason to doubt these conclusions, but the FEHC may have a different perspective, based on its own regulatory experience, that would usefully supplement our own opinion based on general legal principles. This point is in special need of emphasis…

California’s Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) 1 (the FEHA) prohibits sexual harassment in the workplace. At issue here is whether, under the FEHA, an employer is strictly liable for hostile environment sexual harassment by a supervisor and whether the damages a plaintiff may recover from the employer in such a case include damages that the plaintiff could have avoided by reporting incidents of harassment to the employer.

We conclude that an employer is strictly liable under the FEHA for sexual harassment by a supervisor. We further conclude that the avoidable consequences doctrine applies to damage claims under the FEHA, and that under that doctrine a plaintiff’s recoverable damages do not include those damages that the plaintiff could have avoided with reasonable effort and without undue risk, expense, or humiliation.

The avoidable consequences doctrine is well established and broadly applied, and nothing in the FEHA’s language and structure indicates that the Legislature intended to abrogate this fundamental legal principle. On the contrary, failure to apply the avoidable consequences doctrine to FEHA sexual harassment claims could…

Marvin E. Krakow, Los Angeles; Christopher H. Whelan; Quackenbush & Quackenbush and William C. Quackenbush, San Diego, for Real Party in Interest.

Patricia A. Shiu, San Francisco, Claudia Center and Shelley A. Gregory for The Legal Aid Society Employment Law Center, The Impact Fund and California Women's Law Center as Amici Curiae on behalf of Real Party in Interest.

Law Offices of Jeffrey K. Winikow and Jeffrey K. Winikow, Los Angeles, for California Employment Lawyers Association as Amicus Curiae on behalf of Real Party in Interest.

KENNARD, J.

California's Fair Employment and Housing Act (Gov.Code, § 12900 et seq.) [1] (the FEHA) prohibits sexual harassment in the workplace. At issue here is whether, under the FEHA, an employer is strictly liable for hostile environment sexual harassment by a supervisor and whether the damages a plaintiff may recover from the employer in such a case include damages that the plaintiff could have avoided by reporting incidents of harassment to the employer.

We conclude that an employer is strictly liable under the FEHA for sexual harassment by a supervisor. We further conclude that the avoidable consequences doctrine applies to damage claims…