Reporting workplace sexual harassment, or other forms of harassment, can be frightening for fear of retaliation, especially if the harasser is a supervisor. Harassment often goes unreported initially until it becomes intolerable.

In this article, we will discuss the significance of “avoidable consequences” under federal and state law of not reporting harassment in the workplace. For additional information and resources on workplace harassment, read through our answers to some of the common questions we get asked by clients facing similar situations:

The Avoidable Consequences Doctrine Under Federal Law

The federal law defense requires an employer to prove that

  1. it “exercised reasonable care to prevent and correct promptly” any harassing behavior, and
  2. the employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

If these requirements are proven, an employer can avoid all liability under this defense.

The Avoidable Consequences Doctrine Under CA State Law

The state law defense requires an employer to prove that

  1. the employer took reasonable steps to prevent and correct workplace 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 at least some of the harm that the employee suffered.

If these requirements are proven, an employer can avoid some responsibility for damages under this defense, but the employer remains liable for any harm the employee suffered before the time at which the harassment would have stopped if reported.

The Importance of Prompt Reporting

There are many important personal reasons why victims of harassment do or don’t report it, but reporting it promptly is important from a legal perspective. Deciding how and when to report harassment can be difficult. We can help, starting with a free and confidential consultation.

To book a consultation with a member of the Harris Grombchevsky LLP team, call (888) 427-8064 or submit a contact form here.

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