Ninth Circuit Recognizes Affirmative Defense in FEHA Sexual Harassment Claim

In Kohler v. Inter-Tel Technologies, 2001 WL 357113, the U.S. Court of Appeals for the Ninth Circuit, concluded that an employer can assert an affirmative defense under certain circumstances to a claim that a supervisor sexually harassed a plaintiff in violation of the California Fair Employment and Housing Act (FEHA).

Leslie Kohler, filed a claim under the FEHA alleging that, while she worked for Inter-Tel Technologies, her supervisor subjected her to unwelcome sexual remarks, sexual advances, and physical contact that amounted to actionable sexual harassment. Kohler alleged that her supervisor’s retaliatory and harassing behavior made working for Inter-Tel intolerable and forced her to resign. Following a summary judgment on her claims against Inter-Tel, Kohler appealed.

The Court of Appeals faced the issue of whether Inter-Tel could rely on the affirmative defense that the United States Supreme Court established in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). The Supreme Court held that, although an employer may be vicariously liable for a supervisor’s sexual harassment under Title VII, the employer may assert an affirmative defense if no tangible employment action was taken against the employee. To prove the affirmative defense, the employer must show that (1) it exercised reasonable care to prevent and correct the harassment; and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities or other otherwise failed to avoid harm.

The Court of Appeals predicted that the California Supreme Court, when faced with the same issue, would recognize the affirmative defense. The Court of Appeals reached its decision by finding important similarities between the FEHA and Title VII: they similarly define sexual discrimination, sexual harassment, unlawful employment practices, and employer; and they both share the policy of encouraging employers to implement anti-harassment policies and grievance mechanisms. Thus, the Court of Appeals determined that the California Supreme Court would continue its practice of construing FEHA in conformity with Title VII and would recognize the affirmative defense in FEHA claims.

The Court of Appeals next turned to the issue of whether the affirmative defense should apply to facts of this particular case. Because the defense does not apply in cases where the supervisor’s harassment results in a tangible employment action against the harassed employee, the Court of Appeals first concluded that Kohler was not subjected to a tangible employment action. A tangible employment action is one that effects a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a significant change in benefits. According to the evidence presented, none of these actions happened to her. Kohler failed to present evidence to support her claim that, because she rejected her supervisor’s advances, he cancelled a training session; withheld assistance; gave her “crazy schedules”; yelled at her inappropriately; and gave her undeserved work evaluations.

In the absence of a tangible employment action, the Court next addressed the first prong of the two-pronged affirmative defense: did Inter-Tel exercise reasonable care to prevent and correct promptly any sexual harassing behavior? The court answered “yes” because Inter-Tel had a comprehensive anti-harassment policy designed to prevent just this type of activity. Furthermore, once Inter-Tel learned of the alleged harassing behavior, it promptly investigated Kohler’s claims; offered to rehire her with a new supervisor and under the same terms and conditions as her original employment; reviewed its anti-harassment policies; and conducted mandatory sexual harassment training seminars.

The Court next addressed the second prong of the affirmative defense: did Kohler unreasonably fail to take advantage of preventive or corrective opportunities provided by Inter-Tel? The Court again answered “yes” to this question because, although Kohler knew of the sexual harassment policy, she did not complain to management or the human resources department. Furthermore, she refused to participate in the investigation and declined to respond to Inter-Tel’s offer to rehire her. Therefore, the Court of Appeals affirmed the summary judgment in favor of Inter-Tel.