Reduced Risk for Employers when Employee Fails to Follow Complaint Procedure
Under certain circumstances employers can avoid vicarious liability or even certain damages for a supervisor’s sexual harassment of a subordinate worker. This happens when (1) the employer had a meaningful anti-harassment policy, (2) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (3) the victim unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or avoid harm.
When an employer adopts an anti-harassment policy with complaint procedures and disseminates it to employees, the workers are on notice that the company will respond by conducting a prompt, thorough and unbiased investigation of the complaint, impose appropriate discipline if a violation is found, and provide a meaningful remedy for the victim.
The proper implementation of the policy requires the employer to take no “tangible employment action” against the complaining person. A “tangible employment action” includes retaliation or a significant change in employment status such as “hiring, firing, failure to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits”.
Where an employee who was the target of the harassment failed to make a complaint or made a complaint, but later failed to cooperate in the investigation, declined to provide evidence to the employer, or specifically asked the company not to investigate, the employer can successfully assert an affirmative defense to the claim that will prevent the plaintiff from establishing liability or recover damages.
This rule, known as the “doctrine of avoidable consequences”, holds that the plaintiff’s own conduct may limit the amount of damages recoverable or bar recovery entirely. For example, in a recent case1, an employee claiming to be a victim of sexual harassment by his female supervisor, first complained approximate a half year after the activities occurred. In addition to waiting half a year to make a complaint, when he finally made it, he specifically asked the company not to investigate it. The court said that by specifically requesting the company not to make use of its remedial and preventative procedures, the alleged victim unreasonably failed to make use of the employer’s anti-harassment policies and procedures and was not entitle to any remedy or relief and his claim was rejected by the court.
In another case2, the court explained that under the avoidable consequences doctrine3 “[O]ne injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort or expenditure.” Thus, in a lawsuit based on hostile environment sexual harassment by a supervisor, the employer may plead and prove a defense that “(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.”
The public policy behind federal and state laws wants employers to establish effective policies and complaint procedures to stop workplace sexual harassment, wants employees victimized to utilize the employer’s complaint procedures to the extent practicable, and wants courts to compensate the victims with damages generally available in non-contractual actions.
Employers should be aware that the avoidable consequences defense affects damages, not liability. An employer that exercised reasonable care remains liable for harm a sexually harassed employee could not have avoided through reasonable care. The doctrine is part of the law of damages; thus it affects only the remedy available.
1 Hardage v. CBS (9th Cir. 2005) 427 F. 3rd 1177
2 State Dept. of Health Services v. Superior Court (McGinnis) (Cal.Sup.Ct. 31 Cal.4th 1026 (2003)
3 Rest.2nd Torts, § 918, subd. (1)