California does not allow the Faragher-Ellerth defense that employers can use under federal law to escape liability for supervisor harassment. Under FEHA, an employer is strictly liable for a supervisor’s harassment (no matter how good the company’s anti-harassment program is). Here is what that means for employees and employers navigating harassment claims in California.
If you are an employer who has invested in anti-harassment training, written a solid policy, and responded quickly to complaints, you may be surprised to learn that none of that is enough to defeat a harassment claim brought by an employee under California law. I see this catch employers off guard regularly.
At Sherman Law Corporation, our employment litigation practice represents both employees and employers in exactly these cases, and understanding this gap between state and federal law is one of the most important things either side can know before a claim is filed.
How Federal Law Handles Supervisor Harassment
California employers are often caught off guard by how much less protection California law gives them once a supervisor is accused of harassment. Under Title VII, an employer can sometimes avoid liability for a supervisor’s harassment, even where it happened, by proving what is known as the Faragher-Ellerth affirmative defense: that the company exercised reasonable care to prevent and promptly correct harassing behavior and that the employee unreasonably failed to take advantage of the preventive or corrective opportunities the company provided.
Done right, a strong anti-harassment program and a fast, effective response can be a complete defense in federal court, at least where the harassment did not result in a firing, demotion, or similar tangible job consequence. However, in California, all cases are brought under state law because there are no caps on damages and it is far easier to prevail.
What California Law Says Instead
California’s Supreme Court has held that FEHA does not import this defense. An employer is strictly liable for a supervisor’s harassment of an employee, regardless of whether the company knew about the conduct and regardless of how good its prevention and training program was. State Dept. of Health Services v. Superior Court, 31 Cal.4th 1026 (2003).
What This Means in Practice
The practical effect is significant. A California employer with a well-written anti-harassment policy, mandatory supervisor training, and a track record of investigating complaints promptly can still be fully liable for what a supervisor did, in a way that same company might have escaped liability had the same facts happened in a state where only federal law applied. The prevention program still matters. It can reduce exposure to punitive damages, and it is required by California law regardless. It just will not, by itself, defeat the underlying harassment claim the way it might under Title VII.
Takeaway for Employees and Employers
Employees who were harassed by a supervisor should know that California law gives them an advantage federal law does not. An employer cannot escape liability simply by pointing to its harassment policy and training records if a supervisor is the one who harassed you. For more on what California employers are legally required to do, see our post on common employer defenses to harassment claims.
Employers should not assume that a Faragher-Ellerth-style defense will protect the company from a FEHA supervisor harassment claim the way it might under federal law. Maintain the prevention program because it is legally required and it reduces overall exposure, but do not rely on it as a shield once a supervisor’s conduct is at issue, and consult counsel immediately when a complaint comes in.
For additional information or if you wish to seek employment counsel, please contact Lisa Sherman for a free consultation at 323-488-2087 or at Lisa@sherm-law.com.
Frequently Asked Questions About California’s Anti-Harassment Law
1. What is the Faragher-Ellerth defense, and does it apply in California?
The Faragher-Ellerth defense is a federal affirmative defense that allows an employer to avoid liability for a supervisor’s harassment by showing it had reasonable prevention and correction procedures in place and that the employee failed to use them. California courts have explicitly rejected this defense under FEHA. If you are an employer in California, you are strictly liable for supervisor harassment regardless of how good your anti-harassment program is.
2. Can my company be held liable if we have an anti-harassment policy and training program?
Yes. Under California’s FEHA, a well-written policy and mandatory training do not defeat a harassment claim brought against a supervisor. They may reduce your exposure to punitive damages and are required by law regardless, but they will not eliminate your underlying liability. If you were harassed by a supervisor, contact our office to understand what your options are.
3. Why should I bring my harassment claim under California law rather than federal law?
Two main reasons. First, California law does not cap your damages the way federal Title VII does. Second, the strict liability standard under FEHA makes it easier for you because your employer cannot escape liability simply by pointing to its prevention program. For a full breakdown of what you need to prove, see our post on required elements in proving unlawful sexual harassment.
4. Does our prevention program matter at all if it cannot defeat the claim?
Yes, significantly. While it cannot defeat the underlying harassment claim, a strong and well-documented prevention program can reduce or eliminate your exposure to punitive damages. It is also required by California law under FEHA’s mandate that you take all reasonable steps to prevent harassment. Our training and teaching practice works with employers to build compliant programs that reduce your overall exposure.
5. What should I do immediately when a harassment complaint comes in?
Act fast and document everything. Engage qualified investigators through a proper workplace investigation, preserve any relevant communications, and consult employment counsel before taking any adverse action against anyone involved. The speed and quality of your response will matter in any subsequent litigation, even if it cannot eliminate your liability entirely. See our post on reasons to document a California employee’s personnel file for guidance on what to capture.
6. How can Sherman Law Corporation help me with a harassment claim?
Whether you are an employee who has been harassed by a supervisor or an employer trying to understand your exposure and respond correctly, Sherman Law Corporation works directly with you from the first complaint through resolution. Contact our office at 323-488-2087 or at Lisa@sherm-law.com for a free consultation.
