California Civil Jury Instructions (CACI)

2526. Affirmative Defense - Avoidable Consequences Doctrine (Sexual Harassment by a Supervisor)

[Name of defendant] claims that [name of plaintiff] could have avoided some or all of the harm with reasonable effort. To succeed, [name of defendant] must prove all of the following:

1. That [name of defendant] took reasonable steps to prevent and correct workplace sexual harassment;

2. That [name of plaintiff] unreasonably failed to use [[name of defendant]'s harassment complaint procedures/the preventive and corrective measures that [name of defendant] provided]; and

3. That the reasonable use of [name of defendant]'s procedures would have prevented some or all of [name of plaintiff]'s harm.

You should consider the reasonableness of [name of plaintiff]'s actions in light of the circumstances facing [him/her] at the time, including [his/her] ability to report the conduct without facing undue risk, expense, or humiliation.

If you decide that [name of defendant] has proved this claim, you should not include in your award of damages the amount of damages that [name of plaintiff] could have avoided.

Directions for Use

In the second element, select the alternative language that is most appropriate to the facts of the case.

For an instruction on failure to mitigate damages generally, see CACI No. 3930, Mitigation of Damages (Personal Injury).

Sources and Authority

"[W]e conclude that under the FEHA, an employer is strictly liable for all acts of sexual harassment by a supervisor. But strict liability is not absolute liability in the sense that it precludes all defenses. Even under a strict liability standard, a plaintiff's own conduct may limit the mount of damages recoverable or bar recovery entirely." (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1042 [6 Cal.Rptr.3d 441, 79 P.3d 556], internal citations omitted.)

"Under the avoidable consequences doctrine as recognized in California, a person injured by another's wrongful conduct will not be compensated for damages that the injured person could have avoided by reasonable effort or expenditure. The reasonableness of the injured party's efforts must be judged in light of the situation existing at the time and not with the benefit of hindsight. 'The standard by which the reasonableness of the injured party's efforts is to be measured is not as high as the standard required in other areas of law.' The defendant bears the burden of pleading and proving a defense based on the avoidable consequences doctrine." (State Dept. of Health Services, supra, 31 Cal.4th at p. 1043, internal citations omitted.)

"Although courts explaining the avoidable consequences doctrine have sometimes written that a party has a 'duty' to mitigate damages, commentators have criticized the use of the term 'duty' in this context, arguing that it is more accurate to state simply that a plaintiff may not recover damages that the plaintiff could easily have avoided." (State Dept. of Health Services, supra, 31 Cal.4th at p. 1043, internal citations omitted.)

"We hold . . . that in a FEHA action against an employer for hostile environment sexual harassment by a supervisor, an employer may plead and prove a defense based on the avoidable consequences doctrine. In this particular context, the defense has three elements: (1) the employer took reasonable steps to prevent and correct workplace sexual 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." (State Dept. of Health Services, supra, 31 Cal.4th at p. 1044.)

"This defense will allow the employer to escape liability for those damages, and only those damages, 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." (State Dept. of Health Services, supra, 31 Cal.4th at p. 1044, internal citations omitted.)

"If the employer establishes that the employee, by taking reasonable steps to utilize employer-provided complaint procedures, could have aused 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." (State Dept. of Health Services, supra, 31 Cal.4th at p. 1045, internal citations omitted.)

"We stress also that the holding we adopt does not demand or expect that employees victimized by a supervisor's sexual harassment must always report such conduct immediately to the employer through internal grievance mechanisms. The employer may lack an adequate antiharassment policy or adequate procedures to enforce it, the employer may not have communicated the policy or procedures to the victimized employee, or the employee may reasonably fear reprisal by the harassing supervisor or other employees. Moreover, in some cases an employee's natural feelings of embarrassment, humiliation, and shame may provide a sufficient excuse for delay in reporting acts of sexual harassment by a supervisor." (State Dept. of Health Services, supra, 31 Cal.4th at p. 1045.)

Secondary Sources

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.81[7][c], 41.92A (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.36[2][a], 115.54[3] (Matthew Bender)

(New April 2004)