CACI No. 2526. Affirmative Defense - Avoidable Consequences Doctrine (Sexual Harassment by a Supervisor)
Judicial Council of California Civil Jury Instructions (2024 edition)
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2526.Affirmative Defense - Avoidable Consequences Doctrine
(Sexual Harassment by a Supervisor)
If [name of plaintiff] proves that [name of supervisor] sexually harassed
[him/her/nonbinary pronoun], [name of employer defendant] is responsible
for [name of plaintiff]’s harm caused by the harassment. However, [name
of employer defendant] claims that [name of plaintiff] could have avoided
some or all of the harm with reasonable effort. To succeed, [name of
employer defendant] must prove all of the following:
1. That [name of employer defendant] took reasonable steps to
prevent and correct workplace sexual harassment;
2. That [name of plaintiff] unreasonably failed to use the preventive
and corrective measures for sexual harassment that [name of
employer defendant] provided; and
3. That the reasonable use of [name of employer 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/nonbinary pronoun] at the time,
including [his/her/nonbinary pronoun] ability to report the conduct
without facing undue risk, expense, or humiliation.
If you decide that [name of employer defendant] has proved this claim,
you should not include in your award of damages the amount of
damages that [name of plaintiff] could have reasonably avoided.
New April 2004; Revised December 2011, December 2015, May 2020
Directions for Use
Give this instruction if the employer asserts the affirmative defense of “avoidable
consequences.” The essence of the defense is that the employee could have avoided
part or most of the harm had the employee taken advantage of procedures that the
employer had in place to address sexual harassment in the workplace. The
avoidable-consequences doctrine is a defense only to damages, not to liability. (State
Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1045 [6
Cal.Rptr.3d 441, 79 P.3d 556].) For other instructions that may also be given on
failure to mitigate damages generally, see CACI No. 3963, Affırmative
Defense - Employee’s Duty to Mitigate Damages, and CACI No. 3930, Mitigation of
Damages (Personal Injury).
Whether this defense may apply to claims other than for supervisor sexual
harassment has not been clearly addressed by the courts. It has been allowed against
a claim for age discrimination in a constructive discharge case. (See Rosenfeld v.
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Abraham Joshua Heschel Day School, Inc. (2014) 226 Cal.App.4th 886, 900-901
[172 Cal.Rptr.3d 465].)
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 amount of damages recoverable or bar
recovery entirely.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1042,
internal citations omitted.)
• “We emphasize that the defense affects damages, not liability. An employer that
has exercised reasonable care nonetheless remains strictly liable for harm a
sexually harassed employee could not have avoided through reasonable care. The
avoidable consequences doctrine is part of the law of damages; thus, it affects
only the remedy available. If the employer establishes that the employee, by
taking reasonable steps to utilize 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.” (State Dept. of Health
Services, supra, 31 Cal.4th at p. 1045, internal citation 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
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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 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.” (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
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1798
Chin et al., California Practice Guide: Employment Litigation, Ch. 10-D, Employer
Liability For Workplace Harassment, ¶¶ 10:360, 10:361, 10:365-10:367, 10:371,
10:375 (The Rutter Group)
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)
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