As the majority states: “In structuring the [Fair Employment and Housing Act (FEHA)], the Legislature has not expressly incorporated or excluded the avoidable consequences doctrine, thus leaving its application to be determined by the courts.” (Maj. opn., ante, at p. 1047.) I agree with this statement, and with the majority opinion in general. But I would also add that the Fair Employment and Housing Commission (FEHC) may also have a role to play in determining how the avoidable consequences doctrine is to be applied under the FEHA.
The Legislature has authorized the FEHC to “adopt, promulgate, amend, and rescind suitable rules, regulations, and standards (1) to interpret, implement, and apply all provisions of this part [i.e., the FEHA] . . . .” (Gov. Code, § 12935, subd. (a).) The majority assumes that application of the avoidable consequences doctrine to the supervisorial sexual harassment context is appropriate and workable. I have no reason to doubt these conclusions, but the FEHC may have a different perspective, based on its own regulatory experience, that would usefully supplement our own opinion based on general legal principles. This point is in special need of emphasis because we did not have the benefit of an FEHC amicus curiae brief, no doubt at least in part because the State of California is the defendant in this case. I do not understand anything in the majority opinion to preclude the FEHC from issuing regulations pursuant to Government Code section 12935, subdivision (a), that further refine, adapt and even narrow the avoidable consequences defense in order to fit it to the unique context of sexual harassment in the workplace.