California Supreme Court Rules on Sexual Harassment

January 1, 2004

The California Supreme Court has held that employers have a partial defense to damages in sexual harassment cases involving supervisors where the employer establishes that (1) it 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 some of the harm that the employee suffered.

Although the Supreme Court reiterated that employers continue to be "strictly liable" for hostile environment sexual harassment by a supervisor, and that an employee's failure to report harassment is not a defense on the merits, the Court found it was appropriate to reduce damages 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.

Supreme Court "Deals" a Blow to Employers in Casino Case

A case is characterized as a "mixed motives" case when a plaintiff claims that his/her employer was motivated by both legitimate reasons and unlawful reasons - such as race or gender - in making an adverse employment decision.

In Desert Palace, Inc. dba Caesars Palace Hotel & Casino v. Costa 123 S.Ct 2148 (2003), the Supreme Court resolved a split amongst the federal courts of appeal about the evidentiary standard necessary to prove a mixed motives case. The issue is whether plaintiffs need to provide "direct evidence" to prove that the employer's decision was motivated, in part, by an unlawful reason or whether plaintiffs can rely exclusively on "circumstantial evidence." In this context, direct evidence is a higher evidentiary standard that, if believed by the trier of fact, will prove the fact in question without reliance on an inference or a presumption.

Dealing a blow to employers, the Supreme Court held that a plaintiff does not need to provide direct evidence of discrimination to prevail on a mixed motives theory of liability.

The impact of the Supreme Court's holding will most likely be (1) more plaintiffs will file discrimination suits based on a mixed motives theory of liability, (2) it will become more difficult for defendant employers to prevail on motions for summary judgment in mixed motives cases.