Rosenfeld, a teacher, sued her employer, a school, for age discrimination. She claimed she was forced out by having her hours cut. However, the school showed there was a decline in enrollment, and that it would have offered her the same hours in the year following her resignation.
At trial, the school argued that Rosenfeld's failure to use the school's internal complaint procedure should work to cut off her damages, based on an "avoidable consequences" theory. That is a state law defense that says your recovery may be reduced by your failure to reasonably avoid harm. The California Supreme Court applied this defense to a sexual harassment case (State Dept. of Health Servs. v. Superior Court), rejecting the more employer-friendly federal standard.
Quoting the Supreme Court opinion, the Court of Appeal explained the defense:
State Department of Health Services held “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. [¶] 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 Department of Health Services, supra, 31 Cal.4th at p. 1044, italics added.)
Here, the Court of Appeal held that the trial court properly admitted the school's defense in the context of a discrimination claim, rather than a harassment claim:
the trial court properly allowed Heschel to present evidence that Rosenfeld failed to pursue the internal grievance procedure which could have prevented at least some of Rosenfeld’s damages. [fn 6] [n.6]As indicated, the evidence showed that shortly after Rosenfeld submitted her letter of resignation, five more teaching hours became available, so that Rosenfeld could have taught 15 hours per week, instead of 10 hours. Therefore, had Rosenfeld pursued the internal grievance procedure, she would have taught the same number of hours during the 2007-2008 school year that she taught the year before.
This opinion also includes a good discussion of the difference between disparate treatment and disparate impact. The plaintiff tried to try the case based on a "disparate impact" theory, arguing the school's new criteria for evaluating teachers had a disparate impact on older teachers. But the trial court excluded this effort because the plaintiff had been treating the case as "disparate treatment" - intentional discrimination - all along. Quoting from a Ninth Circuit decision, Coleman v. Quaker Oats, (9th Cir. 2000) 232 F.3d 1271, The Court of Appeal rejected the argument that a FEHA claim can be proved by either method without any previous notice to the defendant (in the complaint):
allowing the plaintiffs “to proceed with their disparate impact theory after the close of discovery would prejudice [defendant] Quaker. A complaint guides the parties’ discovery, putting the defendant on notice of the evidence it needs to adduce in order to defend against the plaintiff’s allegations. A disparate impact theory, lacking the requirement that the plaintiff prove intent and focusing on statistical analyses, requires that the defendant develop entirely different defenses, including the job relatedness of the challenged business practice or its business necessity. Neither of these are necessary to defend against a disparate treatment theory. This case illustrates the problem. At no time prior to summary judgment did [plaintiffs] identify which facially neutral Quaker employment practice they challenged as having a discriminatory impact. . . . The lack of notice on this issue central to the cause of action makes it difficult, if not impossible, for Quaker to know how to defend itself. After having focused on intentional discrimination in their complaint and during discovery, the employees cannot turn around and surprise the company at the summary judgment stage on the theory that an allegation of disparate treatment in the complaint is sufficient to encompass a disparate impact theory of liability.” (Coleman, supra, 232 F.3d at pp. 1292-1293, italics added.)
This case is Rosenfeld v. Abraham Joshua Heschel Day School, Inc. and the opinion is here.
