No Harassment or Discrimination? No Liability for Failure to Prevent!

When a jury finds that a plaintiff experienced sexually harassing conduct, but finds that the conduct was not sufficiently severe or pervasive to alter the conditions of employment and did not create a hostile work environment, can a jury’s finding that defendant employer is liable for failure to prevent sexual harassment?

That’s what happened in Dickson v. Burke Williams, Inc., and the Second District Court of Appeals answered: No.

The Court cited a litany of state and federal cases finding the same conclusion. This is not surprising, and it’s interesting to note that defense counsel did propose a special verdict form that instructed the jurors to “skip deliberation of the failure to take reasonable steps to prevent harassment and discrimination based on sex if there was no corresponding finding of liability.” The trial court refused defendant’s proposed special verdict form.

After trial, the jury found no liability for sex discrimination, harassment or retaliation but did find defendant liable for failing to take reasonable steps to prevent sexual harassment or sex discrimination.

Thus, the defendant’s appeal. Which defendant won. Tough medicine for plaintiff.

Dickson v. Burke Williams, Inc., 234 Cal. App. 4th 1307 (March 24, 2015).

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