Employer Liability for Sexual Harassment: California

Standards of liability for California sexual harassment claims against an employer or supervisor.

The California Fair Employment and Housing Act ("FEHA") imposes two standards of employer liability for sexual harassment depending on whether the person engaging in harassment is a supervisor or a nonsupervisory co-employee.[1] That is, liability is governed by the FEHA rather than principles of agency law.[2]The employer is only liable for harassment by a nonsupervisory employee "if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action."[3] That liability for a supervisor's actions are governed by a negligence standard.[4]By contrast, the FEHA makes employers strictly liable for harassment by a supervisor.[5] (Note that strict liability does not preclude defenses. A plaintiff's own conduct may still limit the amount recoverable or bar recovery entirely.[6])__________________________________________________[1]State Dept. of Health Servs. v. Superior Court, 31 Cal. 4th 1026, 1040-41 (2003).[2]State Dept. of Health Servs. v. Superior Court, 31 Cal. 4th 1026, 1041 (2003).[3]State Dept. of Health Servs. v. Superior Court, 31 Cal. 4th 1026, 1041 (2003), citing Cal. Gov. Code § 12940 (j)(1).[4]State Dept. of Health Servs. v. Superior Court, 31 Cal. 4th 1026, 1041 (2003); Brown v. Superior Court, 44 Cal.3d 1049, 1059, fn. 4 (1988).[5]Patterson v. Domino's Pizza, LLC, 60 Cal. 4th 474, 491, 177 Cal. Rptr. 3d 539, 553 (2014); State Dept. of Health Servs. v. Superior Court, 31 Cal. 4th 1026, 1041-42 (2003); see also Carrisales v. Department of Corrections, 21 Cal.4th 1132, 1136 (1999); Murillo v. Rite Stuff Foods, Inc., 65 Cal.App.4th 833, 842 (1998); Weeks v. Baker &' McKenzie 63 Cal.App.4th 1128, 1146 (1998); Fiol v. Doellstedt, 50 Cal.App.4th 1318, 1328 (1996); Doe v. Capital Cities, 50 Cal.App.4th 1038, 1046 (1996).[6]State Dept. of Health Servs. v. Superior Court, 31 Cal. 4th 1026, 1042 (2003).

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