Harassment at Workplace and Avoidable Consequences Doctrine

Under the avoidable consequences doctrine, as recognized in California, a person injured by another’s wrongful conduct will not be compensated for those damages that the injured person could have avoided by reasonable effort. Thus, this doctrine gave rise to the duty to mitigate damages in employment cases – the duty to search for a comparable employment that wrongfully terminated employees have in order to prove their wage loss in court as a result of termination.

This doctrine also applies as a partial defense to the determination of damages in sexual harassment hostile work environment claims against employers. This defense has three elements (1) the employer took reasonable steps to prevent harassment; (2) the employee unreasonably failed to sue 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. Department of Health Services v. Superior Court (2003).

This defense will allow the employer to escape liability only for those damage 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.

Employees, of course, may be reluctant to report their supervisors to higher management, and an employee will often attempt informal negotiation with a supervisor or other strategies. Delay that results from an employee’s initial resort to such non-confrontational means of dealing with the supervisor harassment and failure to file a formal harassment complaint with the human resources department will have to be carefully evaluated to determine whether it was reasonable in a particular employment setting.

It is important that this defense only affects damages but not liability. An employer that has exercised reasonable care in providing channels of reporting harassment remains strictly liable for harm a sexually harassed employee could not have avoided through reasonable care. In other owords, if the employer proves that the employee, by taking reasonable steps to utilized employer-provided complaint procedures, could have caused the harassing conduct to cease, the employer will nonetheless remain liable for any compensable 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.

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