California Appellate Court Holds Federal Affirmative Defense to Sexual Harassment Claims Is Unavailable to Employers Where the Claim Is Brought Under California State Law

On December 3, 2001, the California Court of Appeals issued its decision in Department of Health Services v. McGinnis. The court held that an affirmative defense to sexual harassment available to employers in lawsuits brought under federal law is not applicable to harassment lawsuits brought under California state law. The court concluded that for claims brought under the California Fair Employment and Housing Act (FEHA) (Ca. Gov. Code § 12900 et seq.), employers may be held strictly liable for the harassing conduct of supervisors, even though the employer did not know, and did not have any reason to know, of the illegal conduct.

In 1998, the U.S. Supreme Court provided an affirmative defense to employers in sexual harassment cases where the harassment was committed by a supervisor but no tangible adverse employment action was taken against the employee. In two cases, Burlington Industries v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Court held that an employer may escape liability in the scenario described above by demonstrating that (1) the employer exercised reasonable care to prevent and promptly correct the sexual harassment and (2) the plaintiff employee unreasonably failed to take advantage of the corrective or preventive opportunities provided by the employer or otherwise failed to avoid harm. (Burlington at 764-765, Faragher at 807-808.)

Prior to the McGinnis court's ruling, many, including the Ninth Circuit, believed that the Ellerth and Faragher affirmative defense was applicable under California state law because of FEHA's numerous parallels to federal anti-discrimination law embodied in Title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e-2 et seq.). The McGinnis decision indicates that that is not the case.

In this case before the California appellate court, Theresa McGinnis worked at the Department of Human Services (DHS). She alleged that her supervisor sexually harassed her over an extended period of time beginning in mid-1995. McGinnis told a coworker about the alleged harassment but failed to report her supervisor's behavior to management until late 1997. When it finally learned of the alleged harassment, the DHS promptly investigated McGinnis' claim and commenced disciplinary action against her supervisor who ultimately retired.

McGinnis subsequently brought a lawsuit alleging sexual harassment and sex discrimination under FEHA. DHS moved for summary judgment asserting, in part, the Ellerth and Faragher affirmative defense described above. Specifically, DHS argued that it took no adverse employment action against McGinnis, it had developed and implemented a comprehensive policy and program to prevent and combat sexual harassment, and McGinnis unreasonably failed to avail herself of those measures in a timely manner. The trial court denied DHS's motion, and DHS sought special appellate review of the issue of the Ellerth and Faragher affirmative defense's applicability to California state law sexual harassment claims. The California Court of Appeal granted review and determined that the affirmative defense was not available.

Geographic Scope of the Decision

California is not the first state to hold that the Ellerth and Faragher defense is unavailable for state law claims. Michigan, Missouri, Massachusetts, and Illinois have also ruled this way. In contrast, Tennessee and Texas have found that the affirmative defense is available for their state law claims. The McGinnis court notes that for all of these states, the decision was based entirely on the determination of whether the state statutes that mirror Title VII intended to permit the affirmative defense.

Practical Implications of Department of Health Services v. McGinnis

Strict liability without a defense imposed on managers' actions in states such as California, Michigan, Missouri, Massachusetts, and Illinois sends a clear message to employers. Preventing harassment is more important than ever. Practically speaking, employers in every state should be intent on creating and implementing appropriate policies, procedures, and training to prevent and educate supervisors and employees on harassment based on all legally protected categories. Regardless of whether the Ellerth and Faragher affirmative defense is available for state law claims, the best way to reduce the incidence of harassment in the workforce is to take aggressive proactive steps to avoid it. Yet, where a single mistake by a manager or supervisor made without the employer's knowledge can create legal liability, such proactive mistakes are even more crucial.

Proactive steps should start with employers carefully reviewing existing handbooks and harassment/discrimination policies to make sure that they are clear and comprehensive. Employers should also strongly consider training supervisors and employees on unlawful harassment to make sure that everyone understands what is considered unlawful and how to react if they think harassment occurs. Especially in states where the affirmative defense is not available, it is even more critical that mid- and low-level managers and supervisors are properly educated on what they must and must not do.

Philip L. Ross is a shareholder in Littler Mendelson's San Francisco office If you would like further information, please contact your Littler attorney at 1.888.Littler,, or email, or Mr. Ross at

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.