Stanford Law School - Robert Crown Law Library

Filed 11/24/03

IN THE SUPREME COURT OF CALIFORNIA

STATE DEPARTMENT OF
HEALTH SERVICES,
Petitioner,
S103487
v.
Ct.App. 3 C034163
THE SUPERIOR COURT OF
SACRAMENTO COUNTY,
) Sacramento
County
Respondent;
Super. Ct. No. 98AS02085
THERESA V. McGINNIS,
Real Party in Interest.

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.

1
All further section references are to the Government Code unless otherwise
indicated.

1

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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 undermine a basic goal of the FEHA—to make employers the first line of
defense against sexual harassment in the workplace. A rule making employers
liable even for those damages that an employee could have avoided with
reasonable effort and without undue risk, expense, or humiliation would
significantly weaken the incentive for employers to establish effective workplace
remedies against sexual harassment.
I. FACTS AND PROCEDURAL HISTORY
Because this case comes before us after the trial court denied a motion for
summary judgment, we take the facts from the record before the trial court when it
ruled on that motion. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65.)
“We review the trial court’s decision de novo, considering all the evidence set
forth in the moving and opposition papers except that to which objections were
made and sustained.” (Id. at pp. 65-66.) We take the facts from the Court of
Appeal’s opinion.
Plaintiff Theresa V. McGinnis began working for the Department of Health
Services (DHS) in 1992. In August 1995, plaintiff was transferred to the Maternal
and Child Health Branch, where she worked under the supervision of Cary Hall.
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Plaintiff has alleged that Hall sexually harassed her from early 1996 until late in
1997. Hall’s behavior toward plaintiff allegedly included both inappropriate
comments and unwelcome physical touching. At a deposition, for example,
plaintiff described an incident in July 1997 when Hall, after calling her into his
office, said he would overlook her attendance problems if she would let him touch
her vagina and then proceeded to grab her crotch.
In 1996, plaintiff told a coworker about Hall’s behavior, but she did not
formally report it to management until November 1997, when she reported Hall’s
harassing conduct to one of Hall’s supervisors. The supervisor conveyed these
allegations to DHS’s Office of Civil Rights, which investigated plaintiff’s
allegations and later determined that Hall had violated DHS’s sexual harassment
policy. DHS began disciplinary action against Hall, prompting Hall to retire.
Plaintiff brought this action against Hall and DHS in superior court, alleging,
among other things, sexual harassment and sex discrimination in violation of the
FEHA. DHS answered with a general denial and the assertion of various
affirmative defenses, including allegations that DHS “had exercised reasonable
care by promulgating, instituting and disseminating throughout its workplace
policies and procedures, offering training courses, and other methods designed to
preclude and prevent any sexually harassing behavior and to correct against its
reoccurrence if it did occur” and that “plaintiff, despite her knowledge of these
policies and procedures, and participation in training courses, unreasonably failed
to take advantage of them, and she unreasonably failed to otherwise avoid the
alleged harm and damages for which she seeks relief . . . .”
DHS moved for summary judgment, arguing, in part, that plaintiff’s failure to
promptly use the policies and procedures it had put in place to eliminate sexual
harassment in the workplace provided it with a complete defense to the sexual
harassment claims. In support of this argument, DHS relied on the United States
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Supreme Court’s decisions in Burlington Industries, Inc. v. Ellerth (1998) 524
U.S. 742, 765 (Ellerth) and Faragher v. City of Boca Raton (1998) 524 U.S. 775,
807 (Faragher). Under these decisions, in an employee’s action under title VII of
the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) (Title VII) seeking
damages for workplace sexual harassment not involving a “tangible employment
action,” such as demotion or termination,2 an employer may establish a partial or
complete defense by proving: “(a) that the employer exercised reasonable care to
prevent and correct promptly any sexually harassing behavior, and (b) that the
plaintiff employee unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm otherwise.”
(Ellerth, supra, at p. 765; Faragher, supra, at p. 807.)
The trial court denied DHS’s motion for summary judgment, finding that the
Ellerth/Faragher defense was inapplicable to sexual harassment claims under the
FEHA. The court acknowledged the persuasiveness of the United States Supreme
Court’s reasoning in fashioning the defense, but it concluded that “in the absence
of appellate authority, the application of that same reasoning to a FEHA
harassment claim . . . is a policy decision best left for the Legislature.”
DHS then petitioned the Court of Appeal for a writ of mandate, arguing that
the Ellerth/Faragher defense applied to the FEHA-based claim and entitled it to
summary judgment. The Court of Appeal denied the petition, holding that the
FEHA imposes strict liability on employers for sexual harassment by their
supervisors, and that application of the Ellerth/Faragher defense would be

2
A recent decision by a federal appellate court explores the distinction, in
Title VII actions, between sexual harassment that creates a hostile work
environment and sexual harassment that causes or threatens to cause a tangible
employment action. (Holly D. v. California Institute of Technology (9th Cir.
2003) 339 F.3d 1158.) That distinction is not at issue here.
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inconsistent with the statutory language and the legislative intent of the FEHA.
We granted DHS’s petition for review.
II. DISCUSSION
A. Federal Law
1. Title VII
Title VII prohibits certain forms of employment discrimination, including
sexual discrimination. Title VII states, in part: “It shall be an unlawful
employment practice for an employer . . . [¶] . . . to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex . . . .” (42 U.S.C. § 2000e-
2(a)(1).) Title VII does not specifically mention sexual harassment. Title VII
defines “employer” to include any “agent” of an employer. (Id. § 2000e(b).)
The United States Supreme Court has construed these Title VII provisions in
a series of decisions, three of which are relevant here.
2. The Meritor decision
In Meritor Savings Bank v. Vinson (1986) 477 U.S. 57 (Meritor), an
employee brought an action in federal district court under Title VII against her
employer, seeking damages for sexual discrimination. At the trial, she testified
that her supervisor had “made repeated demands upon her for sexual favors,” had
“fondled her in front of other employees,” had “exposed himself to her,” and
“even forcibly raped her on several occasions.” (Meritor, supra, at p. 60.) She
admitted that she had never reported the supervisor’s conduct to any of his
superiors and had never tried to use the employer’s complaint procedures. (Id. at
p. 61.)
The federal district court denied relief. Of relevance here, the district court
relied both on a conclusion that the employee’s relationship with the supervisor
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was “ ‘a voluntary one having nothing to do with her continued employment . . .
or her advancement or promotions’ ” and on the employee’s failure to report the
supervisor’s conduct to any of his superiors or to use the employer’s complaint
procedures. (Meritor, supra, 477 U.S. at p. 61.)
The United States Supreme Court held “that a plaintiff may establish a
violation of Title VII by proving that discrimination based on sex has created a
hostile or abusive work environment” (Meritor, supra, 477 U.S. at p. 66), if the
harassment was “sufficiently severe or pervasive ‘to alter the condition of [the
victim’s] employment and create an abusive working environment’ ” (id. at p. 67).
It rejected the argument that an employee suing under Title VII for sexual
harassment based on a hostile work environment must prove a resulting economic
loss. (Meritor, at pp. 67-68.) It also found that in determining whether the
supervisor’s sexual advances had constituted harassment prohibited by Title VII,
“[t]he correct inquiry is whether [the employee] by her conduct indicated that the
alleged sexual advances were unwelcome, not whether her actual participation in
sexual intercourse was voluntary.” (Meritor, at p. 68.)
The United States Supreme Court declined “to issue a definitive rule on
employer liability,” but it noted that “Congress’ decision to define ‘employer’ to
include any ‘agent’ of an employer, 42 U.S.C. § 2000e(b), surely evinces an intent
to place some limits on the acts of employees for which employers under Title VII
are to be held responsible.” (Meritor, supra, 477 U.S. at p. 72.) It added,
however, that “absence of notice to an employer does not necessarily insulate that
employer from liability.” (Ibid.) The court identified a flaw in the employer’s
grievance procedure that could explain the employee’s failure to use it. The
employer’s grievance procedure “apparently required an employee to complain
first to her supervisor,” who in this instance was the alleged perpetrator of the
harassment. (Id. at p. 73.) As the court remarked: “[The employer’s] contention
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that [the employee’s] failure should insulate it from liability might be substantially
stronger if its procedures were better calculated to encourage victims of
harassment to come forward.” (Ibid.)
3. The Ellerth and Faragher decisions
The United States Supreme Court treated Ellerth, supra, 524 U.S. 742, and
Faragher, supra, 524 U.S. 775, as companion cases, issuing opinions authored by
different justices on the same day. In each case, a female employee had quit her
job and filed an action in federal district court claiming hostile environment sexual
harassment by a male supervisor in violation of Title VII. (Ellerth, supra, at
pp. 747-748; Faragher, supra, at pp. 781-782.) In each case, the employee had
not complained to management before resigning. (Ellerth, supra, at pp. 748-749;
Faragher, supra, at p. 782.) The employer in Faragher had adopted a sexual
harassment policy, but had failed to effectively communicate it to the department
in which the employee and her supervisors had worked. (Faragher, supra, at
pp. 781-782.)
In Ellerth, the federal district court found that the supervisor’s conduct had
created a hostile work environment, but it nonetheless granted summary judgment
for the employer because the employer “neither knew nor should have known
about the conduct.” (Ellerth, supra, 524 U.S. at p. 749.) In Faragher, the district
court found the employer liable and awarded the employee one dollar in nominal
damages. (Faragher, supra, 524 U.S. at p. 783.)
In both cases, the United States Supreme Court announced in identical
language this standard of employer liability: “An employer is subject to vicarious
liability to a victimized employee for an actionable hostile environment created by
a supervisor with immediate (or successively higher) authority over the
employee.” (Ellerth, supra, 524 U.S. at p. 765; Faragher, supra, 524 U.S. at p.
7

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807.) But the court recognized a defense that the employer could assert in this
situation: “When no tangible employment action is taken, a defending employer
may raise an affirmative defense to liability or damages, subject to proof by a
preponderance of the evidence . . . . The defense comprises two necessary
elements: (a) that the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.” (Ellerth,
supra, at p. 765; Faragher, supra, at p. 807.)
The high court concluded that this affirmative defense was consistent with
agency principles, which the court inferred that Congress had intended courts to
apply to determine the scope of an employer’s vicarious liability under Title VII
for acts of a supervisor. (Ellerth, supra, 524 U.S. at pp. 754-762; Faragher,
supra, 524 U.S. at pp. 793-804.) The court also concluded that Title VII
incorporated the common law doctrine of avoidable consequences, and that the
affirmative defense was consistent with this doctrine. (Ellerth, supra, at p. 764;
Faragher, supra, at pp. 806-807.) Finally, as support for its recognition of the
affirmative defense, the court relied on an analysis of the purposes underlying
Title VII. The court observed that Title VII’s primary purpose was “not to provide
redress but to avoid harm.” (Faragher, supra, at p. 806.) Giving employers an
incentive to make reasonable efforts to prevent workplace harassment would
implement this legislative purpose. (Ibid.) And the court found in Title VII a
design “to encourage the creation of antiharassment policies and effective
grievance mechanisms.” (Ellerth, supra, at p. 764.)
In Ellerth, the high court directed that the matter be remanded to the federal
district court for further proceedings. (Ellerth, supra, 524 U.S. at p. 766.) In
Faragher, the district court’s judgment for the employee was affirmed.
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(Faragher, supra, 524 U.S. at p. 810.) As a matter of law, the high court held that
the employer in Faragher could not invoke the affirmative defense because it “had
entirely failed to disseminate its policy against sexual harassment among” the
affected employees and had “made no attempt to keep track of the conduct of
supervisors.” (Id. at p. 808.)
B. State Law: The FEHA and Sexual Harassment
Like Title VII, California’s FEHA prohibits employment discrimination
based on sex (§ 12940, subd. (a)). Unlike Title VII, the FEHA expressly and
separately prohibits workplace harassment based on sex. (§ 12940, subd. (j)(1).)
As here relevant, this provision reads: “It shall be an unlawful employment
practice . . . [¶] [F]or an employer . . . , because of . . . sex . . . to harass an
employee . . . . Harassment of an employee . . . by an employee other than an
agent or supervisor shall be unlawful if the entity, or its agents or supervisors,
knows or should have known of this conduct and fails to take immediate and
appropriate corrective action. An entity shall take all reasonable steps to prevent
harassment from occurring. Loss of tangible job benefits shall not be necessary in
order to establish harassment.” (Ibid, italics added.)
For purposes of the prohibition against workplace harassment, the FEHA
defines “employer” to include “any person acting as an agent of an employer,
directly or indirectly.” (§ 12940, subd. (j)(4)(A).)
The FEHA makes it a separate unlawful employment practice for an
employer to “fail to take all reasonable steps necessary to prevent discrimination
and harassment from occurring.” (§ 12940, subd. (k).)
In another section, the FEHA requires employers to distribute educational
material to their employees regarding sexual harassment law and company
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procedures. (§ 12950; see Farmers Ins. Group v. County of Santa Clara (1995)
11 Cal.4th 992, 1015, fn. 11.)
The FEHA is to be construed liberally to accomplish its purposes. (§ 12993.)
C. Analysis
California courts often look to Title VII in interpreting the FEHA. (Reno v.
Baird (1998) 18 Cal.4th 640, 647.) But we have stated that “[o]nly when FEHA
provisions are similar to those in Title VII do we look to the federal courts’
interpretation of Title VII as an aid in construing the FEHA.” (Johnson v. City of
Loma Linda, supra, 24 Cal.4th at p. 74.) Moreover, this court has observed that
explicit differences between federal law and the FEHA “diminish the weight of
the federal precedents.” (Commodore Home Systems, Inc. v. Superior Court
(1982) 32 Cal.3d 211, 217.)
The FEHA’s provisions concerning employment discrimination by sexual
harassment differ significantly from the provisions of Title VII. Indeed, Title VII
does not specifically address sexual harassment at all. It is because Title VII lacks
specific language on sexual harassment that the United States Supreme Court has
been forced to infer not only a prohibition on sexual harassment in the workplace,
but also a standard of employer liability and an affirmative defense to liability.
Given this significant difference in wording, we give little weight to the federal
precedents in this area. Nonetheless, as explained below, we find that an
independent analysis of the FEHA’s antiharassment provisions using state law
principles leads to conclusions similar to those of the United States Supreme Court
in Ellerth, supra, 524 U.S. 742, and Faragher, supra, 524 U.S. 775.
The FEHA imposes two standards of employer liability for sexual
harassment, depending on whether the person engaging in the harassment is the
victim’s supervisor or a nonsupervisory coemployee. The employer is liable for
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harassment by a nonsupervisory employee only if the employer (a) knew or should
have known of the harassing conduct and (b) failed to take immediate and
appropriate corrective action. (§ 12940, subd. (j)(1).) This is a negligence
standard. (See Brown v. Superior Court (1988) 44 Cal.3d 1049, 1059, fn. 4.)
Because the FEHA imposes this negligence standard only for harassment “by an
employee other than an agent or supervisor” (§ 12940, subd. (j)(1)), by implication
the FEHA makes the employer strictly liable for harassment by a supervisor. This
court and the Courts of Appeal have so stated. (See Carrisales v. Department of
Corrections (1999) 21 Cal.4th 1132, 1136; Murillo v. Rite Stuff Foods, Inc. (1998)
65 Cal.App.4th 833, 842; Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th
1128, 1146; Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1328; Doe v. Capital
Cities (1996) 50 Cal.App.4th 1038, 1046; Kelly-Zurian v. Wohl Shoe Company,
Inc. (1994) 22 Cal.App.4th 397, 415-416; Fisher v. San Pedro Peninsula Hospital
(1989) 214 Cal.App.3d 590, 608, fn. 6.)
The applicable language of the FEHA does not suggest that an employer’s
liability for sexual harassment by a supervisor is constrained by principles of
agency law. Had the Legislature so intended, it would have used language in the
FEHA imposing the negligence standard of liability on acts of harassment by an
employee “other than an agent,” “not acting as the employer’s agent,” or “not
acting within the scope of an agency for the employer.” By providing instead in
section 12940, subdivision (j)(1), that the negligence standard applies to acts of
harassment “by an employee other than an agent or supervisor” (italics added), the
Legislature has indicated that all acts of harassment by a supervisor are to be
exempted from the negligence standard, whether or not the supervisor was then
acting as the employer’s agent, and that agency principles come into play only
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when the harasser is not a supervisor.3 To the extent the United States Supreme
Court derived the Ellerth/Faragher defense from agency principles, therefore, its
reasoning is not applicable to the FEHA.
The legislative history of the FEHA’s antiharassment provisions gives further
support for our conclusion that an employer is strictly liable for all acts of sexual
harassment by a supervisor. Documents in the legislative record show that section
12940, which contains the antiharassment provisions, and which was adopted in
1982 (Stats. 1982, ch. 1193, § 2, pp. 4258-4260), was based in part on then
existing federal regulations promulgated by the federal Equal Employment
Opportunity Commission. (See Assem. Com. on Labor and Employment, Conf.
Com. Rep. on Assem. Bill No. 1985 (1981-1982 Reg. Sess.) Aug. 20, 1982.) A
conference committee report observed that “federal and state regulations make it
an unlawful employment practice for an employer, labor organization, or
employment agency, or their agents or supervisors, to harass an applicant or an
employee on a basis enumerated in the fair employment laws.” (Ibid., italics
added.) The then applicable federal regulations imposed liability on employers for
all acts of sexual harassment by a supervisory employee “regardless of whether the
specific acts complained of were authorized or even forbidden by the employer
and regardless of whether the employer knew or should have known of their
occurrence.” (29 C.F.R. § 1604.11(c), rescinded in 1999; see 29 C.F.R. § 1604.11
appen. A (2003) [stating that the Equal Employment Opportunity Commission
rescinded 29 C.F.R. § 1604.11(c) in light of Ellerth, supra, 524 U.S. 742, and

3
Of course, this analysis assumes the supervisor is acting in the capacity of
supervisor when the harassment occurs. The employer is not strictly liable for a
supervisor’s acts of harassment resulting from a completely private relationship
unconnected with the employment and not occurring at the workplace or during
normal working hours. But instances of such harassment must be rare.
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Faragher, supra, 524 U.S. 775]; see also Oppenheimer, Exacerbating the
Exasperating: Title VII Liability of Employers for Sexual Harassment Committed
by Their Supervisors (1995) 81 Cornell L.Rev. 66, 150-151.)
Thus, we conclude that under the FEHA, an employer is strictly liable for all
acts of sexual harassment by a supervisor. But strict liability is not absolute
liability in the sense that it precludes all defenses. (Daly v. General Motors
Corporation (1978) 20 Cal.3d 725, 733.) Even under a strict liability standard, a
plaintiff’s own conduct may limit the amount of damages recoverable or bar
recovery entirely. (Id. at p. 737.)
The FEHA permits individual suits for damages to enforce its provisions, but
it does not specify what damages are recoverable. (See § 12965, subds. (b)-(c).)
This court has concluded that, in an action seeking damages for sexual harassment
under the FEHA, the plaintiff may recover those damages “generally available in
noncontractual actions.” (Commodore Home Systems, Inc. v. Superior Court,
supra, 32 Cal.3d at p. 221; accord, Murillo v. Rite Stuff Foods, Inc., supra, 65
Cal.App.4th at p. 848; see also Farmers Ins. Group v. County of Santa Clara,
supra, 11 Cal.4th at p. 1014.) In civil actions generally, the right to recover
damages is qualified by the common law doctrine of avoidable consequences.
The Restatement Second of Torts states the doctrine this way: “[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 after the commission
of the tort.” (Rest.2d Torts, § 918, subd. (1).) The comment explains that this rule
“applies only to the diminution of damages and not to the existence of a cause of
action.” (Id., com. a, p. 500.) The doctrine is applied in the law of contracts as
well (see 5 Corbin on Contracts (1964) Damages § 1044, p. 275; Brandon & Tibbs
v. George Kevorkian Accountancy Corp. (1990) 226 Cal.App.3d 442, 460) and is
recognized as a rule of damages with wide application in civil cases generally.
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The avoidable consequences doctrine has been applied to workplace torts.
(Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181; Rabago-
Alvarez v. Dart Industries, Inc. (1976) 55 Cal.App.3d 91, 97-99.)
Although courts explaining the avoidable consequences doctrine have
sometimes written that a party has a “duty” to mitigate damages, commentators
have criticized the use of the term “duty” in this context, arguing that it is more
accurate to state simply that a plaintiff may not recover damages that the plaintiff
could easily have avoided. (See Green v. Smith (1968) 261 Cal.App.2d 392, 396;
McCormick on Damages (1935) p. 128; Riffer and Barrowman, Recent
Misinterpretations of the Avoidable Consequences Rule: The “Duty” to Mitigate
and Other Fictions (1993) 16 Harv. J. Law & Pub. Policy 411.) A federal
appellate court explained the guiding principle this way: “[T]he community’s
notions of fair compensation to an injured plaintiff do not include wounds which
in a practical sense are self-inflicted.” (Ellerman Lines, Ltd. v. The Steamship
President Harding (2d Cir. 1961) 288 F.2d 288, 290; see also Parker v. Twentieth
Century-Fox Film Corp., supra, 3 Cal.3d 176, 185 (dis. opn. of Sullivan, Acting
C.J.) [stating that “the familiar rule requiring a plaintiff in a tort or contract action
to mitigate damages embodies notions of fairness and socially responsible
behavior which are fundamental to our jurisprudence”].)
Under the avoidable consequences doctrine as recognized in California, a
person injured by another’s wrongful conduct will not be compensated for
damages that the injured person could have avoided by reasonable effort or
expenditure. (Green v. Smith, supra, 261 Cal.App.2d at p. 396; accord, Albers v.
County of Los Angeles (1965) 62 Cal.2d 250, 271-272; Valencia v. Shell Oil Co.
(1944) 23 Cal.2d 840, 844; Schultz v. Town of Lakeport (1936) 5 Cal.2d 377, 383-
385; Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1568; Shaffer v.
Debbas (1993) 17 Cal.App.4th 33, 41; Hunter v. Croysdil (1959) 169 Cal.App.2d
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307, 318; see also Davies v. Krasna (1975) 14 Cal.3d 502, 515 [“victims of legal
wrongs should make reasonable efforts to avoid incurring further damage”]; 6
Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1382, p. 852.) The
reasonableness of the injured party’s efforts must be judged in light of the
situation existing at the time and not with the benefit of hindsight. (Green v.
Smith, supra, 261 Cal.App.2d at p. 396.) “The standard by which the
reasonableness of the injured party’s efforts is to be measured is not as high as the
standard required in other areas of law.” (Id. at p. 397.) The defendant bears the
burden of pleading and proving a defense based on the avoidable consequences
doctrine. (Burrows v. State of California (1968) 260 Cal.App.2d 29, 33.)
Application of the avoidable consequences doctrine to hostile environment
sexual harassment suits against an employer is consistent with the two main
purposes of the FEHA—compensation and deterrence. (§ 12920.5; see Flannery
v. Prentice (2001) 26 Cal.4th 572, 582-583.) The doctrine encourages preventive
action by both the employer and the employee while affording compensation to
the employee for harms that neither party could have avoided through reasonable
care. Nothing in the language of the FEHA precludes application of the avoidable
consequences doctrine to an employee’s action under the FEHA seeking damages
for hostile environment sexual harassment by a supervisor. Accordingly, to the
extent the United States Supreme Court grounded the Ellerth/Faragher defense in
the doctrine of avoidable consequences (see Ellerth, supra, 524 U.S. at p. 764;
Faragher, supra, 524 U.S. at p. 806), its reasoning applies also to California’s
FEHA.
We hold, therefore, that in a FEHA action against an employer for hostile
environment sexual harassment by a supervisor, an employer may plead and prove
a defense based on the avoidable consequences doctrine. In this particular
context, the defense has three elements: (1) the employer took reasonable steps to
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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.
This defense will allow the employer to escape liability for those damages,
and only those damages, that the employee more likely than not could have
prevented with reasonable effort and without undue risk, expense, or humiliation,
by taking advantage of the employer’s internal complaint procedures appropriately
designed to prevent and eliminate sexual harassment. Deciding when a harassed
employee has first suffered compensable harm and when a reasonable employee
would have reported the harassment will in many and perhaps most instances
present disputed factual issues to be resolved by application of practical
knowledge and experience. Employees may be reluctant to report their
supervisors to higher management and an employee will often attempt informal
negotiation with a supervisor, make efforts to avoid encounters with the
supervisor, or resort to other informal strategies. Delay that results from an
employee’s initial resort to such nonconfrontational means of dealing with
supervisor harassment will have to be carefully evaluated to determine whether it
was reasonable in a particular employment setting.
We emphasize that the defense affects damages, not liability. An employer
that has exercised reasonable care nonetheless remains strictly liable for harm a
sexually harassed employee could not have avoided through reasonable care. The
avoidable consequences doctrine is part of the law of damages (see McCormick on
Damages, supra, p. 128); thus, it affects only the remedy available. If the
employer establishes that the employee, by taking reasonable steps to utilize
employer-provided complaint procedures, could have caused the harassing
conduct to cease, the employer will nonetheless remain liable for any compensable
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harm the employee suffered before the time at which the harassment would have
ceased, and the employer avoids liability only for the harm the employee incurred
thereafter.
We stress also that the holding we adopt does not demand or expect that
employees victimized by a supervisor’s sexual harassment must always report
such conduct immediately to the employer through internal grievance
mechanisms. The employer may lack an adequate antiharassment policy or
adequate procedures to enforce it, the employer may not have communicated the
policy or procedures to the victimized employee, or the employee may reasonably
fear reprisal by the harassing supervisor or other employees. Moreover, in some
cases an employee’s natural feelings of embarrassment, humiliation, and shame
may provide a sufficient excuse for delay in reporting acts of sexual harassment by
a supervisor. The employee’s conduct is judged against a standard of
reasonableness, and this standard “is not as high as the standard required in other
areas of law.” (Green v. Smith, supra, 261 Cal.App.2d at p. 397.)
In other words, to take advantage of the avoidable consequences defense, the
employer ordinarily should be prepared to show that it has adopted appropriate
antiharassment policies and has communicated essential information about the
policies and the implementing procedures to its employees. In a particular case,
the trier of fact may appropriately consider whether the employer prohibited
retaliation for reporting violations, whether the employer’s reporting and
enforcement procedures protect employee confidentiality to the extent practical,
and whether the employer consistently and firmly enforced the policy. Evidence
potentially relevant to the avoidable consequences defense includes anything
tending to show that the employer took effective steps “to encourage victims to
come forward with complaints of unwelcome sexual conduct and to respond
effectively to their complaints.” (Grossman, The First Bite Is Free: Employer
17

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Liability for Sexual Harassment (2000) 61 U.Pitt. L.Rev. 671, 696.) “[I]f an
employer has failed to investigate harassment complaints, [or] act on findings of
harassment, or, worse still, [has] retaliated against complainants, future victims
will have a strong argument that the policy and grievance procedure did not
provide a ‘reasonable avenue’ for their complaints.” (Id. at p. 699.)
The Court of Appeal here rejected application of the Ellerth/Faragher
defense to this FEHA supervisor harassment case because it concluded that the
wording of the FEHA and Title VII are materially different. The court did not
consider whether the basic elements of the Ellerth/Faragher defense already exist
in California law under the doctrine of avoidable consequences and whether that
doctrine applies in actions under the FEHA. The court appeared to assume,
incorrectly, that any defense based on the plaintiff employee’s own fault or lack of
due care would be incompatible with the imposition of strict liability on the
defendant employer. As we have explained, this is not so. Strict liability does not
preclude defenses based on the injured party’s failure to exercise reasonable care
to avoid the harm or to prevent exacerbation of the harm. (Daly v. General
Motors, supra, 20 Cal.3d at p. 737.)
Plaintiff McGinnis argues that recognizing an avoidable consequences
defense is inconsistent with an administrative regulation that reads: “An employee
who has been harassed on the job by a co-employee should inform the employer
. . . of the aggrievement; however, an employee’s failure to give such notice is not
an affirmative defense.” (Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(4).) We
perceive no inconsistency. The regulation applies to harassment by a coworker,
not harassment by a supervisor. Moreover, as we have explained, an employee’s
failure to report a supervisor’s harassment to management, by itself, is insufficient
to establish an avoidable consequences defense. To establish the defense, the
employer must also show that the employee’s failure to report the harassment was
18

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unreasonable under the circumstances and that, more likely than not, using the
employer-provided internal remedies would have prevented at least some of the
employee’s claimed damages from occurring.
Plaintiff also argues that applying the avoidable consequences doctrine to
FEHA sexual harassment claims would interfere with the Legislature’s decision to
place on employers the burden to prevent harassment and correct its effects. We
disagree. As we have explained, in this context the avoidable consequences
doctrine merely requires a harassment victim, when it is reasonable to do so, to use
employer-provided grievance procedures and, if the employee fails to do so,
denies recovery of only those damages that could have been avoided by using the
employer’s procedures. The underlying goal of the legislative scheme is to
provide effective measures to prevent workplace harassment. In furtherance of
this goal, the FEHA requires employers to establish and promulgate anti-
harassment policies and to set up and implement effective grievance procedures.
Insofar as the avoidable consequences doctrine encourages employees to use these
procedures, it advances the legislative goal.
Plaintiff also argues that the FEHA is a no-fault system, like worker’s
compensation, and that the avoidable consequences doctrine does not apply to no-
fault systems. We need not decide here whether or to what extent employer
liability under the FEHA is comparable to employer liability under worker’s
compensation, because the plain language of Labor Code section 4056 belies
plaintiff’s claim that the avoidable consequences doctrine is inherently
incompatible with a no-fault system like worker’s compensation and cannot be
used to defeat “full compensation.” As relevant here, that section provides that
“[n]o compensation is payable in case of the death . . . of an employee when his
death is caused . . . by an unreasonable refusal to submit to medical treatment, or
to any surgical treatment, if the risk of the treatment is, in the opinion of the
19

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appeals board, based upon expert medical or surgical advice, inconsiderable in
view of the seriousness of the injury.” (Ibid.) Thus, under the circumstances
specified in Labor Code section 4056, an employee’s failure to take reasonable
steps to avoid further injuries can provide the employer with a partial or complete
defense to a worker’s compensation claim. If the avoidable consequences doctrine
may be applied to a no-fault system like worker’s compensation (and Labor Code
section 4056 shows that it can), then there is nothing inconsistent or anomalous in
applying it also to FEHA harassment claims. In structuring the FEHA, the
Legislature has not expressly incorporated or excluded the avoidable
consequences doctrine, thus leaving its application to be determined by the courts.
Although full compensation of workplace harassment victims is an important
FEHA goal, preventing workplace harassment is a FEHA goal of equal and
perhaps even greater importance. By encouraging prompt resort to employer-
provided remedies, application of the avoidable consequences doctrine can stop
workplace harassment before it becomes severe or pervasive.
An amicus curiae supporting plaintiff McGinnis argues that the avoidable
consequences doctrine should not be construed as imposing a requirement that an
employee exhaust an employer’s internal remedies. Nothing in this opinion
suggests that the avoidable consequences doctrine operates in this manner. Using
the employer’s internal procedures will not be a prerequisite to filing a FEHA
claim or bringing a FEHA action against the employer; it will merely be a fact
relevant in determining the merits of an avoidable consequences defense if the
employer chooses to assert such a defense.
The parties and the organizations that have submitted briefs as amici curiae
have devoted much effort to debating whether allowing or disallowing the
Ellerth/Faragher defense would better serve the FEHA’s goal of eliminating
sexual harassment from the workplace. DHS and the amici curiae supporting it
20

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argue that the defense provides needed incentives for the employer to establish
and vigorously enforce antiharassment policies, and for harassed employees to
make use of the employer-provided remedies. On the other hand, plaintiff
McGinnis and the amici curiae supporting her argue that strict liability without an
affirmative defense gives employers the maximum incentive to establish and
enforce antiharassment policies in order to reduce the incidence of harassment.
They also argue that harassed employees will use convenient and effective
employer-provided complaint procedures if they believe it is safe to do so, and
that employees require no additional incentive to use procedures that promise an
end to the nightmare of harassment. We need not decide which party has the
better argument on this point. This is an empirical question of fact better suited to
legislative investigation and determination, and we decline to speculate on the
correct answer.
What is not speculative is that, in enacting and amending the FEHA, the
Legislature wanted employers to establish effective policies and complaint
procedures to stop workplace sexual harassment, that it wanted employees
victimized by workplace sexual harassment to utilize the employer’s complaint
procedures to the extent practicable, and that it wanted the courts to compensate
the victims of workplace sexual harassment with the damages generally available
in noncontractual actions. Our holding is fully consistent with each of these
purposes. Accordingly, we anchor our holding in the language of the FEHA, its
underlying policies, and an established principle of the law of damages.
III. CONCLUSION AND DISPOSITION
Sexual harassment in the workplace by a supervisor is a nightmarish
experience for any employee. The employee wants a prompt end to the harassing
conduct, but being known as a harassment victim can be personally humiliating,
and reporting acts of harassment by a supervisor carries risks that are both
21

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professional and economic. When deciding whether to report a supervisor’s
harassment to an employer, the harassment victim, who may already feel
vulnerable and defenseless, is likely to wonder: Will my employer believe me?
Will my employer fire me, demote me, label me a troublemaker, or transfer me to
a position with no future?
Whether these fears are baseless depends on the employer’s conduct. If the
employer has established antiharassment policies, has communicated those
policies to its staff, has consistently enforced its policies, has sought to preserve
confidentially, and has prevented retaliation against those who report harassment,
the employee is more likely to promptly report harassment. A conscientious
employer will quickly stop the misconduct of which it becomes aware. Prompt
employer intervention not only minimizes injury to the victim, but also sends a
clear message throughout the workplace that harassing conduct is not tolerated.
Employers who take seriously their legal obligation to prevent harassment are an
employee’s best protection against workplace harassment. But an employer, no
matter how conscientious, cannot take action to stop improper conduct without
some reason to suspect that sexual harassment is occurring.
A generally recognized principle of the law of damages is that “a party must
make reasonable efforts to mitigate damages, and recovery will not be allowed for
damages that a party should have foreseen and could have avoided by reasonable
effort without undue risks, expense, or humiliation.” (Home Life Ins. Co. v. Clay
(1989) 13 Kan.App.2d 435, 445 [773 P.2d 666, 674].) This principle applies
broadly to many different sorts of legal claims, including claims based on strict
liability, and we conclude that it applies also to employee actions under the FEHA
for hostile environment sexual harassment by a supervisor. An employer may
invoke this principle by proving that the plaintiff employee unreasonably failed to
make use of employer-provided antiharassment remedies and that it is more likely
22

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than not that at least some of the employee’s damages would have been avoided
by reasonable use of these internal procedures. The trial court and the Court of
Appeal erred in concluding otherwise. Whether DHS here presented sufficient
evidence in support of its motion for summary judgment to establish the defense
and, if so, whether the defense it established is partial or complete, are
predominately factual questions that are not before us and on which we venture no
opinion.
We reiterate the limits of our holding. An employer continues to be strictly
liable for hostile environment sexual harassment by a supervisor. An employee’s
failure to report harassment to the employer is not a defense on the merits to the
employee’s action under the FEHA, but at most it serves to reduce the damages
recoverable. And it reduces those damages only if, taking account of the
employer’s anti-harassment policies and procedures and its past record of acting
on harassment complaints, the employee acted unreasonably in not sooner
reporting the harassment to the employer.
The Court of Appeal’s judgment is reversed, and the matter is remanded to
that court for further proceedings consistent with this decision.
KENNARD,
J.
WE CONCUR:

GEORGE, C.J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.
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CONCURRING OPINION BY MORENO, J.

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. 20.) 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 because we did not have the benefit of an FEHC amicus
curiae brief, no doubt at least in part because the State of California is the
defendant in this case. I do not understand anything in the majority opinion to
preclude the FEHC from issuing regulations pursuant to Government Code section
12935, subdivision (a), that further refine, adapt and even narrow the avoidable
1

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consequences defense in order to fit it to the unique context of sexual harassment
in the workplace.
MORENO, J.
2

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See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion State Department of Health Services v. Superior Court
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 94 Cal.App.4th 14
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S103487
Date Filed: November 24, 2003
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: John R. Lewis

__________________________________________________________________________________

Attorneys for Appellant:

Bill Lockyer, Attorney General, Davis S. Chaney and Jacob Appelsmith, Assistant Attorneys General,
James M. Schiavenza, Barbara J. Seidman, Barbara A. Morris, Nina Thompson and Tracy S. Hendrickson,
Deputy Attorneys General, for Petitioner.

Lloyd W. Pellman County Counsel (Los Angeles), Steven J. Carnevale, Assistant County Counsel, Alan K.
Terakawa and Mary E. Reyna, Deputy County Counsel, for Los Angeles County Metropolitan
Transportation Authority as Amicus Curiae on behalf of Petitioner.

Liebert Cassidy Whitmore, Richard S. Whitmore and Deborah G. Leon for California League of Cities’
Legal Advocacy Committee and the California State Association of Counties as Amici Curiae on behalf of
Petitioner.

Paul, Hastings, Janofsky & Walker, Nancy L. Abell, Paul W. Crane, Jr., and Katherine C. Huibonhoa for
Los Angeles Unified School District as Amicus Curiae on behalf of Petitioner.

Morgan, Lewis & Bockius, Thomas M. Peterson, Rebecca D. Eisen; Brobeck, Phleger & Harrison and
Jennifer A. Kearns for The Employers Group as Amicus Curiae on behalf of Petitioner.

Heller Ehrman White & McAuliffe, Patricia K. Gillette and Greg J. Richardson for The California
Employment Law Council and The California Bankers Association as Amici Curiae on behalf of
Petitioner.

Ballard Rosenberg Golper & Savitt, John B. Golper, Linda Miller Savitt and Christine T. Hoeffner as
Amici Curiae on behalf of Petitioner.
__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

1

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Page 2 - counsel continued - S103487:

Attorneys for Real Party in Interest:

Marvin E. Krakow; Christopher H. Whelan; Quackenbush & Quackenbush and William C. Quackenbush
for Real Party in Interest.

Patricia A. Shiu, 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 for California Employment Lawyers
Association as Amicus Curiae on behalf of Real Party in Interest.


2

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Tracy S. Hendrickson
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 323-7363

Marvin E. Krakow
1801 Century Park East, Suite 1520
Los Angeles, CA 90067
(310) 229-0900

3

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Opinion Information

Date:	Docket Number:
Mon, 11/24/2003	S103487

Disposition
Nov 24 2003	Opinion: Reversed

Dockets
Jan 8 2002	Petition for review filed   in Sacramento by the Attorney General for Dept. of Health Services
Jan 10 2002	Received Court of Appeal record   C034163 - one doghouse
Jan 23 2002	Answer to petition for review filed   by counsel for RPI THeresa V. McGinnis. (filed in Sacto)
Jan 28 2002	Request for depublication (petition for review pending)   filed by counsel for California Bankers Association (non party).
Jan 28 2002	Request for depublication (petition for review pending)   by attorney Linda Miller Savitt (non party).
Feb 13 2002	Petition for Review Granted (civil case)   Votes: George C.J., Kennard, Baxter, Chin & Brown JJ.
Feb 26 2002	Received letter from:   Tracy S. Hendrickson, Deputy AG-SAC, dated 2/25/2002, re change of attorneys for appellant Calif Dept of Health Services. Barbara Morris, DAG, deleted from service list.
Feb 27 2002	Certification of interested entities or persons filed   by counsel for RPI Theresa V. McGinnis.
Mar 6 2002	Request for extension of time filed   by petitioner asking to April 15, 2002 to file opening brief on the merits. (request filed in Sacramento)
Mar 12 2002	Extension of time granted   to and including April 15, 2002 for petitioner to file the opening brief on the merits.
Apr 12 2002	Opening brief on the merits filed   by AG for petitioner (CA Dept. of Health Services). (filed in Sacto)
May 7 2002	Request for extension of time filed   answer brief/merits to 7-12-2002>>real party Teresa V. McGinnis
May 9 2002	Extension of time granted   Real Party in Interest (T. McGinnis) time to serve and file the answer brief on the merits is extended to and including July 12, 2002.
Jul 12 2002	Answer brief on the merits filed   by counsel for real party (Theresa V. McGinnis)
Jul 18 2002	Request for extension of time filed   by counsel for petitioner (Calif. Dept. of Health Services) asking to Aug. 30, 2002 to file reply brief. (received in Sacramento)
Jul 24 2002	Extension of time granted   to and including August 30, 2002 for petitioner to file the reply brief.
Aug 29 2002	Reply brief filed (case fully briefed)   by (AG) counsel for petitioner (Calif. Dept. of Health Svcs.)
Sep 16 2002	Request for extension of time filed   The Employers Group requests extension to Oct. 30, 2002 to file application and amicus curiae brief.
Sep 20 2002	Extension of time granted   On application of amicus curiae The Employers Group and good cause appearing, it is ordered that the time to serve and file the amicus curiae brief in support of appellant herein is extended to and including October 30, 2002. Answer due by any party within 20 days.
Sep 20 2002	Received application to file amicus curiae brief; with brief   Los Angeles County Metropolitan Transportation Authority ** granted ** order being prepared.
Sep 25 2002	Permission to file amicus curiae brief granted   Los Angeles Metropolitan Transp. Authority
Sep 25 2002	Amicus Curiae Brief filed by:   Los Angeles County Metropolitan Transportation Authority in support of petitioner. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 25 2002	Received application to file Amicus Curiae Brief   California League of Cities' Legal Advocacy Committee et al., in support of petitioner. (brief under same cover). (non-party) *** granted *** order being prepared.
Sep 26 2002	Permission to file amicus curiae brief granted   California League of Cities' Legal Advocacy Committee, et al., in support of petitioner.
Sep 26 2002	Amicus Curiae Brief filed by:   Calif. League of Cities' Legal Advocacy Committee, et al., in support of petitioner.
Sep 26 2002	Request for extension of time filed   by Calif. Employment Law Council and The California Bankers Assoc. requesting an extension to October 30, 2002 to file application to file amicus brief.
Sep 27 2002	Received application to file amicus curiae brief; with brief   Los Angeles Unified School District in support of petitioner. (non-party)
Sep 30 2002	Received application to file Amicus Curiae Brief   The Legal Aid Society-Employment Law Center, The Impact Fund, and California Women's Law Center in support of Real Party in Interest. (appli & brief under same cover)
Sep 30 2002	Extension of time granted   On application of amicus curiae The Calif. Employment Law Council et al., and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of petitioner herein is extended to and including October 30, 2002.
Sep 30 2002	Received application to file amicus curiae brief; with brief   California Employment Lawyers Assn in support of real partty [app w/i brief]
Oct 1 2002	Permission to file amicus curiae brief granted   Los Angeles Unified School District
Oct 1 2002	Amicus Curiae Brief filed by:   Los Angeles Unified School District in support of petitioner. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 3 2002	Permission to file amicus curiae brief granted   The Legal Aid Society-Employment Law Center, The Impact Fund, and California Women's Law Center.
Oct 3 2002	Amicus Curiae Brief filed by:   The Legal Aid Society-Employment Law Center, The Impact Fund, and California Women's Law Center in support of Real Party in Interest. Answer due by any party within 20 days.
Oct 4 2002	Permission to file amicus curiae brief granted   California Employment Lawyers Assn.
Oct 4 2002	Amicus Curiae Brief filed by:   California Employment Lawyers Assn in support of real party in interest. Answer due by any party within 20 days.
Oct 23 2002	Response to amicus curiae brief filed   in Sacto by petitioner. Response to amicus brief of The Legal Aid Society-Employment Law Center, The Impact Fund, and California Women's Law Center.
Oct 30 2002	Received application to file Amicus Curiae Brief   by The Calif. Employment Law Council et al. in support of petitioner. (Timely - see extension order filed on 9/30/02)
Oct 31 2002	Received application to file Amicus Curiae Brief   by The Employers Group in support of petitioner. (Timely per rule 40k and extension order filed on 9/20/02)
Nov 5 2002	Permission to file amicus curiae brief granted   The California Employment Law Council and the California Bankers Association.
Nov 5 2002	Amicus Curiae Brief filed by:   The California Employment Law Council and the California Bankers Association in support of petitioner. Anwer due by any party within 20 days.
Nov 5 2002	Permission to file amicus curiae brief granted   The Employers Group.
Nov 5 2002	Amicus Curiae Brief filed by:   The Employers Group in support of petitioner. Answer due by any party within 20 days.
Mar 10 2003	Notice of substitution of counsel received   on behalf of The Employers Group, as Amicus Curiae.
Jun 9 2003	Association of attorneys filed for:   Real Party in Interest, Theresa V. McGinnis hereby associates, Marvin E. Krakow, Esq. as appellate counsel, along with Christopher H. Whelan. (recv'd in Sacramento)
Aug 4 2003	Supplemental briefing ordered   The court requests that the parties submit supplemental briefs in letter form no later than AUGUST 25, 2003, addressing these questions: 1. Does the doctrine of avoidable consequences as recognized by California law (see Alberts v. County of Los Angeles (1965) 62 Cal.2d 250, 271; Green v. Smith (1968) 261 Cal.App.2d 392, 396; 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, ? 1382, p. 852), and as referenced by the United States Supreme Court in Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 764, and Faragher v. City of Boca Raton (1998) 524 U.S. 775, 805, apply in an action seeking damages under the California Fair Employment and Housing Act for hostile environment sexual harassment by a supervisor? 2. Assuming the avoidable consequences doctrine applies in this context, what is its effect?
Aug 5 2003	Case ordered on calendar   9-3-03, 9am, S.F.
Aug 11 2003	Request for extension of time filed   by aplt for a 30-day extension for filing the supplemental briefing AND to reschedule oral argument. ***Requests DENIED, letter has been sent.
Aug 22 2003	Supplemental brief filed   real party Theresa V. McGinnis
Aug 22 2003	Received application to file amicus curiae brief; with brief   by Ballard Rosenberg Colper & Savitt LLP in support of petitioner. (wrong color of covers) (granted - order being prepared. Answer due by Sept. 2, 2003)
Aug 25 2003	Received letter from:   supplemental letter brief>ac Calif Employment Lawyers Assn requires application to file--counsel notified
Aug 25 2003	Received document entitled:   Application for leave to file additional letter brief amici curiae in support of petitioner California Department of Health Services - from attorneys for amici curiae The California Employment Law Council and The California Bankers Association. (Granted - order being prepared. Answer due by Sept. 2, 2003.)
Aug 25 2003	Supplemental brief filed   petitioner California Dept. of Health Services.
Aug 25 2003	Permission to file amicus curiae brief granted   Ballard Rosenberg Golper & Savitt LLP
Aug 25 2003	Amicus curiae brief filed   The application of Ballard Rosenberg Golper & Savitt LLP for permission to file an amicus curiae brief in support of petitioners is hereby granted. Answer due by any party by Sept. 2, 2003.
Aug 25 2003	Permission to file amicus curiae brief granted   California Employment Law Council and The California Bankers Association
Aug 25 2003	Amicus curiae brief filed   The application of California Employment Law Council and The California Bankers Association for permission to file an amicus curiae brief in support of petitioner is hereby granted. Answer due by any party by Sept. 2, 2003.
Aug 26 2003	Received:   application for perm to file supplemental letter brief [submitted 8-25] >>ac Calif Employment Lawyers Assn
Aug 26 2003	Permission to file amicus curiae brief granted   California Employment Lawyers Association
Aug 26 2003	Amicus curiae brief filed   The application of California Employment Lawyers Association for permission to file an amicus curiae brief in support of petitioner is hereby granted. Answer due by any party by Sept. 2, 2003.
Aug 27 2003	Filed:   "Respondent's Notice of Additional Authority" - from counsel for RPI (McGinnis). Late pursuant to rule 29.1(d) - filed with permission.
Sep 3 2003	Cause argued and submitted
Nov 24 2003	Opinion filed: Judgment reversed   and remanded to CA. Majority Opinion by Kennard, J. joined by George C.J., Baxter, Werdegar, Chin, Brown & Moreno, JJ. Concurring Opinion by Moreno, J.
Dec 29 2003	Remittitur issued (civil case)
Jan 7 2004	Note:   record sent to CA3.
Jan 8 2004	Received document entitled:   Receipt for remittitur - from CA3

Briefs
Apr 12 2002	Opening brief on the merits filed
Jul 12 2002	Answer brief on the merits filed
Aug 29 2002	Reply brief filed (case fully briefed)
Sep 25 2002	Amicus Curiae Brief filed by:
Sep 26 2002	Amicus Curiae Brief filed by:
Oct 1 2002	Amicus Curiae Brief filed by:
Oct 3 2002	Amicus Curiae Brief filed by:
Oct 4 2002	Amicus Curiae Brief filed by:
Oct 23 2002	Response to amicus curiae brief filed
Nov 5 2002	Amicus Curiae Brief filed by:
Nov 5 2002	Amicus Curiae Brief filed by:
Aug 25 2003	Amicus curiae brief filed
Aug 25 2003	Amicus curiae brief filed
Aug 26 2003	Amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website