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November 25, 2003
CA High Court Gives Employers Harassment Protection

The California Supreme Court ruled Monday that employers with strong anti-harassment policies may be spared monetary damages if the victim fails to report the misconduct promptly and doesn't have a reasonable explanation for that failure.

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The Los Angeles Times reports that the unanimous ruling shields employers who would have stopped a supervisor's harassment if the victim had complained. Until now, the newspaper reports, employers had been automatically liable even if they weren't aware of the wrongdoing.

The ruling came in a sexual harassment lawsuit filed by Theresa McGinnis, an employee of the state Department of Health Services. She claimed to have endured two years of improper touching and verbal harassment from her boss before complaining, and an investigation indeed found harassment on the part of the supervisor, who retired.

McGinnis said she waited so long to complain because she didn't think the department would do anything. She pointed to cases of other workers who had reported the same boss, with no action taken against him, according to the Times.

The department countered that it would have stopped the harassment if McGinnis had complained.

Two lower courts decided against the state, but on Monday the Supreme Court sided with the state. Justice Joyce L. Kennard, writing for the court, said the decision was aimed at making "employers the first line of defense against sexual harassment in the workplace."

By encouraging victims to come forward with their complaints, Kennard wrote, the law "can stop workplace harassment before it becomes severe or pervasive."

Employment lawyers interviewed by the Times predicted the ruling would spur employers to establish and publicize strong internal policies against sexual harassment.

"It is going to reduce instances of sexual harassment," said Deputy Attorney General Tracy S. Hendrickson, who represented the employer in the case before the court. "I think employers are going to be much more diligent about making sure policies are followed and employees have a good, clean route to follow when they complain."

But some lawyers for sexual harassment victims said few employers would be able to significantly reduce their exposure to damages. The ruling generally allows a jury to determine whether a victim's failure to file a complaint immediately was unreasonable. A jury may consider a victim's fear of retaliation and feeling of humiliation, the court said. Studies of sexual harassment victims show they rarely complain promptly.

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