Under the avoidable consequences doctrine defense, an employer may escape a damages award even if the sexual harassment plaintiff proves that her supervisor sexually harassed her. This defense to damages (not liability) depends on proof that the plaintiff could have avoided some or all of the harassment’s harm with reasonable effort. To succeed, the employer-defendant must prove all of the following:
- That the employer took reasonable steps to prevent and correct workplace sexual harassment (for example, implementation of an effective sexual harassment policy stated in an employee handbook or orientation);
- That the plaintiff unreasonably failed to use the preventive and corrective measures for sexual harassment that employer provided; and
- That the reasonable use of employer’s procedures would have prevented some or all of the Plaintiff’s harm.
Courts consider the reasonableness of the Plaintiff’s actions in light of the circumstances facing her at the time, including her ability to report the conduct without facing undue risk, expense, or humiliation. If an employer prevails on this defense, the plaintiff may prove the harassment but receive an award of zero damages.
Not only is sexual harassment illegal. The law also prohibits:
- Racial harassment
- Religious harassment
- Age-based harassment
- Harassment based on disability
- Harassment based on ethnicity or national origin