stating that “California courts often look to Title VII in interpreting the FEHA”
How later courts described this case
- stating that “California courts often look to Title VII in interpreting the FEHA”
- holding employee’s failure to report harassment may serve to reduce damages available in a sexual harassment case
- “FEHA permits individual suits for damages to enforce 17 its provisions, but it does not specify what damages are 18 recoverable.”
- providing “an 6 employer is strictly liable under the FEHA for [unlawful] harassment by a supervisor”
Written by the judges who cited it.
The opinion
*1050 MORENO, J., Concurring.
As the majority states: “In structuring the [Fair Employment and Housing Act (FEHA)], the Legislature has not expressly incorporated or excluded the avoidable consequences doctrine, thus leaving its application to be determined by the courts.” (Maj. opn., ante, at p. 1047.) I agree with this statement, and with the majority opinion in general. But I would also add that the Fair Employment and Housing Commission (FEHC) may also have a role to play in determining how the avoidable consequences doctrine is to be applied under the FEHA.
The Legislature has authorized the FEHC to “adopt, promulgate, amend, and rescind suitable rules, regulations, and standards (1) to interpret, implement, and apply all provisions of this part [i.e., the FEHA] . . . .” (Gov. Code, § 12935, subd. (a).) The majority assumes that application of the avoidable consequences doctrine to the supervisorial sexual harassment context is appropriate and workable. I have no reason to doubt these conclusions, but the FEHC may have a different perspective, based on its own regulatory experience, that would usefully supplement our own opinion based on general legal principles. This point is in special need of emphasis because we did not have the benefit of an FEHC amicus curiae brief, no doubt at least in part because the State of California is the defendant in this case. I do not understand anything in the majority opinion to preclude the FEHC from issuing regulations pursuant to Government Code section 12935, subdivision (a), that further refine, adapt and even narrow the avoidable consequences defense in order to fit it to the unique context of sexual harassment in the workplace.