Drew Lewis
Employment Law Attorney
Last Updated:
- October 23, 2024
More than 5,000 people every year file a claim for workplace sexual harassment in California. If you experience sexual harassment in the workplace, it can be difficult to know what to do. You might feel alone and isolated, not know how to stop the harassment or what your legal rights are.
Employers have an obligation to provide a safe, harassment-free work environment. When they fail to do this, they can be held legally liable for the harassment.
This article provides the ultimate guide for workplace sexual harassment victims in California and answers important questions like:
- What is the definition of workplace sexual harassment?
- How can you stop sexual harassment at work?
- Are you protected when you report sexual harassment?
It also provides practical tips on how to report and document sexual harassment so that you can prove it happened, make it stop, and demand accountability and change.
Article Contents:
Section #1: What is sexual harassment?
Section #1
What is sexual harassment?
The definition of sexual harassment is broad and covers a wide variety of behavior. While rape or any type of unwelcome sexual touching is considered sexual harassment, the behavior does not have to be that severe to rise to the level of sexual harassment.
In California there are two types of workplace sexual harassment:
- “Quid pro Quo” harassment, and
- “Hostile work environment” harassment.
While these two types of harassment are slightly different, both share a common element: in order for the behavior to be harassment, it must be unwelcome. That means if a coworker is making sexually suggestive remarks or physically touching you, but you are okay with it, then it is not sexual harassment.
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Section #2: Hostile Work Environment Sexual Harassment
Section #2
Hostile Work Environment Sexual Harassment
Hostile work environment sexual harassment (sometimes abbreviated as HWE) is the most common form of sexual harassment. Simply put, hostile work environment harassment makes it so that your work environment and the harassment are inseparable or inescapable.
Hostile work environment harassment is defined as unwelcome behavior, based on your sex, that is severe or pervasive:
1) The behavior must be unwelcome
The behavior directed at you must be unwelcome. That simply means that you do not want it. It also means that you need to communicate in some way that it is unwelcome. The simplest way is to tell the person to stop or that you do not like what he or she is doing. But even if you do not explicitly tell the person, your reaction to the conduct can show that what the person was doing was not welcome.
Example:
While Ramona is sitting at her desk, Jerome comes up behind her and begins massaging her shoulders. Ramona is uncomfortable with this. But instead of telling Jerome to stop, she immediately gets up and moves to another desk to work.
2) The behavior must be based on your sex/gender
The harassment must be directed at you because of your sex. This is usually not an issue because sexual comments or inappropriate physical touching strongly evidence that the harassment is based on gender. However, if a man harasses a woman because she is wearing a blue colored shirt, then it is less likely that the harassment is based on the woman’s gender. Instead, the harassment is based on the color of the shirt—which is not illegal.
3) The harassment must be severe or pervasive
Finally, the harassment must be either severe or pervasive. The more severe the behavior the less frequent it has to occur. For example, a single instance of rape or sexual assault are likely severe enough to satisfy the requirement. On the other hand, telling a man he looks handsome once is not sexual harassment. However, if the comments become excessive, even though the comment in isolation is not offensive, its continued repetition might be enough to constitute harassment.
Additionally, the behavior has to be more than:
- Sporadic,
- Occasional,
- Isolated,
- Trivial
Example:
Wendy, in a state of low inhibition, tells a crowd of coworkers that she loves men with big butts. This is the only time she has ever said something like this. Because the comment happened once and because it was relatively trivial, this is likely not sexual harassment.
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Section #3: Quid Pro Quo Sexual Harassment
Section #3
Quid Pro Quo Sexual Harassment
Quid pro quo sexual harassment is the threat, or promise of withholding or providing, an employment benefit in exchange for the victim doing something for the harasser. This is the second form of sexual harassment. The term “quid pro quo” is Latin which literally means “this for that” and is usually the most obvious form of harassment because it involves the harasser asking for or demanding some type of sexual favor (it does not have to be intercourse) in exchange for some benefit or to avoid some form of punishment.
Some examples of quid pro quo harassment include the harasser threatening to withhold or making the promise of:
- A promotion
- Better work schedule
- Title/position
- Compensation
- Not firing you
While the threat or promise does not have to be explicit, it does have to be connected to you performing some type of act.
Example:
Rosa’s supervisor invites her to have drinks with her socially after work. She politely declines. In response, her supervisor suggests that if she does not come, he “won’t have an opportunity to evaluate you for the promotion.” Because Rosa’s supervisor conditioned an opportunity for promotion on going out with him, this would be quid pro quo sexual harassment.
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Section #4: Who is protected from workplace sexual harassment?
Section #4
Who is protected from workplace sexual harassment?
California has some of the most protective workplace sexual harassment laws in the United States. Unlike federal law which imposes liability for sexual harassment only if the company has 15 employees or more, all California employees are protected by California’s sexual harassment laws. In fact, the law protects more than just regular employees. It also protects:
- Employees
- Independent Contractors
- Interns (paid or unpaid)
- Volunteers
Employers have an obligation to prevent workplace sexual harassment
California employers are not just responsible for responding appropriately to complaints of sexual harassment, they have an obligation to actively prevent it. They must prevent workplace sexual harassment, protect employees who report it, and ensure that victims and those who report harassment do not face adverse employment actions such as demotion, harassment, suspension or even termination.
There are numerous ways in which companies are expected to keep sexual harassment out of the workplace:
- Providing mandatory sexual harassment training
- Timely and thoroughly investigating reports of sexual harassment
- Reassigning or disciplining, including firing, harassers
- Maintaining a work environment where victims and reporters are not retaliated against
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Section #5: Who can commit sexual harassment?
Section #5
Who can commit sexual harassment?
One misconception about California workplace sexual harassment is that only supervisors and bosses can commit it. In reality, your employer has an obligation to protect you from sexual harassment form most people you might come into contact with in the workplace. This includes:
- Owner, supervisor or boss. When a supervisor or boss harasses you, the law considers the harassment as an act of the company itself. Additionally, the harassment of a co-worker can be attributed to the company if your supervisor or boss fails to fix the situation, for example, by firing or reassigning the harasser.
- Non supervisor coworkers. Coworkers can sexually harass others who are on equal levels, but they can also harass up or down the organizational chart. When you are harassed by a co-worker who is not a supervisor, in order for the company to be liable for the co-worker’s sexual harassment, you must first notify the company. If the company fails to act, then it could be responsible to you for damages.
- Third parties (vendors, consultants, clients, customers, etc.). Third parties who are not employees of the company can commit sexual harassment against you or other employees. An example could be a vendor offering to sign a contract with you in exchange for sexual favors. Another example is a third-party business consultant engaging in ribald and sexual humor even after you explain you’re not comfortable with it and ask them to stop..
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Section #6: Examples of Sexual Harassment
Section #6
Examples of Sexual Harassment
Sexual harassment can be physical, verbal or nonverbal in nature and can cover a wide variety of behavior. It is important to remember that in order for someone’s actions to be considered sexual harassment, it must be based on your gender or sex and it must be unwanted.
For example, kissing a co-worker could be considered workplace sexual harassment. However, if your co-worker is your significant other, it likely is not (assuming it is welcome). Workplace flirting is another example of behavior that could be considered sexual harassment if it is unwelcome.
It is important to remember, that in order for any conduct to be considered sexual harassment it must also be either severe or pervasive. Thus, while a single instance of some of the examples below might constitute hostile work environment harassment, others on their own might not.
Common examples of verbal sexual harassment
Verbal sexual harassment occurs when someone speaks to you, about you or around you in a way that makes you uncomfortable and is related to your sex or acts of a sexual nature.
Examples of verbal sexual harassment include:
- Cat calls or wolf whistles
- Unwanted sexual jokes or teasing
- Unwanted and inappropriate comments about your gender or things related to your gender, including talking about parts of your body or your appearance
- Unwanted questions about your sexual orientation, sexual experience or sexual desires
- Referring to you or someone of your gender in potentially derogatory phrases
- Turning discussions at work to sexual topics
- Telling sexual stories or making innuendos
- Comments about your clothing or anatomy that are of a sexual nature
- Making sounds that imitate sexual actions, including kissing sounds or sounds typically associated with the act of intercourse or orgasm
- Spreading rumors about someone’s sex life
Common examples of physical sexual harassment
Physical sexual harassment occurs when someone touches you in a way that is unwelcome or uses physical proximity to intimidate you in a sexual manner.
Examples of physical sexual harassment include:
- Someone touching you in an unwelcome manner, including stroking your hair, holding a hand on your back or even brushing up against you repeatedly — especially when there is no physical or special need to do so
- Someone giving you an unwanted neck or shoulder massage, especially without asking or if you have stated that you don’t want to be touched
- Unwanted hugging, stroking or any other physical contact
- Standing very close to you or cornering you against a wall or other obstruction
Common examples of nonverbal sexual harassment
You can also experience sexual harassment that is neither verbal nor physical in nature.
Examples of nonverbal sexual harassment include:
- Looking you up and down in a suggestive manner or staring pointedly at certain areas of your body
- Giving you unwanted or inappropriate gifts
- Displaying vulgar symbols or gestures to you, about you or around you
- Imitating sexual activity with their body or hands
How do you know if the harassment you are experiencing is “severe” or “pervasive”? Some examples, such as rape and assault would very clearly be severe. However, for other less obvious examples, the right conclusion requires consideration of many different factors, including how frequent you experienced these things, by whom, and in what setting, just to name a few. A sexual harassment attorney is best suited to help you figure out whether you have experienced unlawful sexual harassment at work.
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Section #7: Male Sexual Harassment in the Workplace
Section #7
Male Sexual Harassment in the Workplace
Most people believe that there is no such thing as same-gender sexual harassment—that it is not illegal. However, sexual harassment by men against men or women against women is still sexual harassment. In fact, in 2015 men filed 1,166 sexual harassment claims with the EEOC.
The harasser does not have to be motivated by sexual desire. This means in same-sex sexual harassment cases, the harasser does not have to be gay or lesbian for the conduct to be sexual harassment.
Examples of Male Sexual Harassment in the California Workplace
- Referring to you by female pronouns
- Sexual taunting
- Simulate sex acts
Jobs where Male Sexual Harassment Commonly Occurs
There are some jobs where male sexual harassment is more common than others. You typically see this in jobs where there is a concentration of men and which are prone to “bro” or “frat” culture. Those jobs include:
- Hotel and restaurant jobs
- Construction jobs
- Manufacturing jobs
- Waste management jobs
- Sales jobs
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Section #8: How to stop workplace sexual harassment
Section #8
How to stop workplace sexual harassment
Trying to stop workplace sexual harassment is important for several reasons. First, it is important because you should be able to work in an environment free from harassment. From a legal standpoint, however, trying to stop workplace harassment is important because it puts the company on notice that you are being harassed and who the harasser is.
In many cases, the California company needs to be provided the opportunity to fix the situation. And without the opportunity, you might not be able to pursue a harassment claim.
Here are three steps you can follow to stop sexual harassment in your workplace:
1) Confront the Harasser
If possible, you should confront your harasser and tell them that you do not like what they are doing and demand they stop. This puts them on notice that their behavior is unacceptable. In some cases, the person might not realize their behavior is unwelcome, and asking them to stop can be an important step in freeing yourself from that attention. You can do this in-person, over the phone, by email or by text message.
Caution:
In some cases, it is not advisable to confront your harasser. This is especially true if you are concerned about violence. In that case you should report the harassment to the appropriate company official.
2) Report the conduct
After confronting their harasser, some California workers are content that the issue has been resolved. If you are concerned that it will continue, you should also report the behavior to the company. Some companies have their own internal complaint-making process. This can be found in the company handbook. If your company does have a defined process, then you should follow that process.
If your company does not have a defined complaint-making process, you should report the conduct to your supervisor, human resources or even the owner—whomever is the appropriate or appointed person to handle such complaints.
It is important that the person to whom you are reporting the harassment has some authority to handle it because they will be able to stop or prevent future harassment. Reporting it to a coworker who does not have decision making authority may not be sufficient to put the company on notice.
Additionally, by reporting to someone in such a role, you are putting the company on notice that there is a problem. If the company fails to act or fails to do enough to correct the situation, they could be liable for a workplace sexual harassment suit.
3) Document the harassment and your reports to the company
You should document the harassment you are experiencing, including:
- What was said or done
- The date and time it occurred
- How you responded
- Who was involved
- Who witnessed the incident(s)
Start doing this immediately so that you have all this information if the issue escalates or is not resolved by your efforts or the company’s. You may need this data when filing a claim or lawsuit.
You can document the harassment in various ways:
- Keeping a journal of your experience
- Sending emails to yourself (using your personal email address) of the harassment immediately after it happens
- Filing a report with your employer when experiencing harassment
You will notice that each of the three examples are written. Having written evidence of your experience is important. Memories often fade, so having it documented can refresh your memory if you have to talk about it months or even years later.
Documentary evidence is also perceived as more reliable and authoritative than memory. Because it is written down, you are more likely to be believed.
The best documentary evidence is evidence that is:
- Contemporaneously made (made at the time or shortly after the incident or report), and
- Detailed and Specific (describes who, what, where, when, why)
Not Great | Joe sexually harassed me on June 3. |
Better | Joe touched me at work on June 3 in a way that I felt uncomfortable with. He started rubbing my shoulders and I told him that he did not need to do that. |
Best | On June 3, I was working at my desk. It was around 8:15am when Joe came up behind me. He put his hands on my shoulders and started to rub them. He told me "you looked stressed." I responded that "I am ok" and tried to move away. He said "let me help you out." I told him that "you don't need to. It is ok. I am fine." |
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Section #9: How to recognize and prevent retaliation for reporting sexual harassment
Section #9
How to recognize and prevent retaliation for reporting sexual harassment
It is illegal to discriminate, retaliate or terminate an employee for reporting workplace sexual harassment in California, even if the behavior turns out not to be sexual harassment. Sometimes someone other than the victim reports the harassment and experiences retaliation. Whether you are the victim or the reporter, you have the right not to be protected from retaliation.
As a victim or as a reporter, you are protected from retaliation when you:
- Try to escape sexual harassment
- Decline a boss or supervisor’s unwelcome sexual invitations
- Tell the harasser to stop
- Report sexual harassment to supervisors or superiors
Common forms of Retaliation
Retaliation can take many forms and can include less significant types like refusing to interact with you to more significant types that affect your compensation and livelihood like suspension, reduction in pay and even threats.
Some common forms of retaliation include:
- Firing
- Failing to promote
- Demotion
- Reassignment with significantly different responsibilities
- Reduction in compensation
- Loss of benefits
- Suspensions
- Lateral transfers
- Denial of flex time
- Negative job references and evaluations
- Firing
- Failing to promote
- Demotion
- Reassignment with significantly different responsibilities
- Reduction in compensation
- Loss of benefits
- Suspensions
- Lateral transfers
- Denial of flex time
- Negative job references and evaluations
How to prove retaliation
Because most supervisors will not say “I am firing you for reporting sexual harassment” many workers are concerned they will not be able to prove they are experiencing retaliation in connection with harassment or reporting harassment. The law recognizes that this type of “direct evidence” does not usually exist. Instead, you can prove retaliation through “circumstantial evidence” – that is that your boss, supervisor or company’s actions suggest that they are taking those actions because of your reporting the harassment.
One of the most important questions to answer when trying to prove retaliation is how close in time did the retaliation begin after your actions (asking the harasser to stop, refusing pickups, reporting the behavior, etc.) and the retaliatory actions (demotion, termination, etc.). The closer in time between the two, the stronger the connection is that you are being unlawfully retaliated against.
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Section #10: Should you quit if you’re experiencing sexual harassment?
Section #10
Should you quit if you’re experiencing sexual harassment?
Whether or not you quit because of workplace sexual harassment is a personal decision. You didn’t do anything wrong, and in some cases, you might otherwise like your job and your workplace. However, your work environment might not be tolerable and you might feel you have no other choice but to leave.
Regardless of the decision you make, if you are considering leaving, you should be aware that resigning from your position could have significant (and unintended) consequences on your ability to obtain justice and accountability.
What is a constructive discharge?
You might experience a point where the workplace sexual harassment is so severe or has lasted so long that staying in your jobs becomes intolerable. If you are seriously considering quitting your job, you should understand some of the consequences of doing so and how that could impact your ability to file a sexual harassment claim against your employer.
For employees who have these types of experiences, the law sometimes recognizes that you can no longer remain at work. And because of it, despite liking the work you do, you might have to quit. This is referred to as a “constructive termination.” The word “constructive” simply means that “the law regards it as.”
The definition of a constructive termination is when:
- The workplace was so hostile that a reasonable person would feel compelled to quit under the same circumstances, and
- The employer knew or should have known of the hostile conditions or that the employer demonstrated an intent to force you to resign
If you can satisfy these requirements, the law considers your quitting the same as you being wrongfully terminated. If you experience a constructive discharge, you are still able to obtain lost pay, emotional distress and punitive damages.
Tip:
Proving that you have experienced a constructive termination is hard. It is a high legal standard to satisfy and it is generally helpful to show that you have made all reasonable efforts to try and address the harassment. A workplace sexual harassment lawyer will be able to advise you about what you should do before quitting your job.
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Section #11: What types of damages can be recovered in sexual harassment cases?
Section #11
What types of damages can be recovered in sexual harassment cases?
Every workplace sexual harassment case is unique, and the types of damages that can be recovered depend on the facts of your case. Talking to a lawyer about your case can help you understand whether you have a case, what types of damages you might seek and what your chances are of winning any compensation.
Obviously, no attorney can guarantee the outcome of any case, but here are some of the categories of damages that victims can recover in sexual harassment cases.
Attorney’s Fees and Costs
Many workers do not even call an attorney because they think it will be too expensive to hire an attorney to take on their case. What most employees do not now, however, is that If you win your case the company will be required to pay for your attorney’s fees and any costs that were incurred as part of your lawsuit.
Because attorney’s fees can be recovered and because employees generally do not have the resources to spend tens or hundreds of thousands of dollars on an attorney, attorneys who represent employees in these types of cases will take the case on contingency. That generally means you do not have to pay your attorney unless you win.
Even if you settle your case without going all the way to trial, most settlements include an amount for attorney’s fees and costs.
Lost Wages
Lost wages refer to the amount of income you lost related to the sexual harassment. Most often, this comes from losing your job (either because you were terminated or had to quit). If this happens, and you go without a job for any period of time, you can recover backpay and front pay.
- Backpay - is the amount of wages you lost from the time that you were terminated or quit up to the time you found a new job. If you currently find yourself in this position, you should know that you have an obligation to “mitigate your damages” which is a legalese way of saying you have to go and look for a job—you can’t just sit at home while you accrue backpay damages in hopes of a big payout in a lawsuit.
- Front pay - is the difference in pay between the job you were terminated from or quit and the job you found immediately after leaving the company where you experienced the sexual harassment.
Emotional distress
The law also recognizes that your injuries are more than just financial. Victims of sexual harassment can experience a number of emotional and psychological issues resulting from the harassment, such as:
- Insomnia
- Embarrassment
- Shame
- Loss of appetite
- Humiliation
- Marital issues
- Loss of desire of sex
- Reputation loss
In addition to experiencing these symptoms as a direct result of the harassment, you might also experience some of these or other emotional injuries as a result from the loss of your job/income if you are forced to resign. This is especially true when you find yourself in the following situations:
- Unable to pay rent
- Loss of healthcare
- Unable to seek medical treatment
Example:
After Ashely was constructively discharged from her job, with limited income, she had to make the choice between paying rent or paying for her medication. After choosing to pay rent and without her medication, Ashley experienced severe episodes of depression. This was the result of her quitting because of severe harassment she experienced at work.
While the law cannot return you to your normal self before the harassment happened, it can try to make you whole and compensate you by putting a dollar amount on the pain you experienced.
Punitive damages
Punitive damages are exactly what they sound like. They’re damages that exceed compensation for your losses and are awarded specifically to punish the sexual harasser. In workplace sexual harassment cases, punitive damages are most often awarded against the company.
Reinstatement
In some cases, you may want your job back. Reinstatement is something that a court can award. However, it is rare that a victim wants to return to the workplace where he or she was harassed, especially if there has not been a change in company policy, practice or personnel.
The exception to this general rule applies to employees that work for public agencies like city, state or local governments. Often times, public employees wish to remain or be reinstated at their job. This is because if they leave, they lose service time towards their pension. That results in the employee being entitled to a small pension when they retire.
Change in policies and practices
For companies who have policies and practices that support or enable sexual harassment, victims can also seek a change in those policies and practices.
For example, a company might institute an anonymous tip line to report sexual harassment as part of a settlement or judgment in your case. Like reinstatement, this rarely happens unless this is something that is important to you and the company has a policy or practice that can be changed.
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Section #12: How long do you have to file a sexual harassment lawsuit?
Section #12
How long do you have to file a sexual harassment lawsuit?
A workplace sexual harassment lawsuit must be filed within a certain amount of time. Prior to 2020, victims of sexual harassment had only one year to file a complaint with the Department of Fair Employment and Housing (DFEH). Victims who failed to do so would be be prohibited from filing a lawsuit if they filed a complaint after the one-year period had lapsed.
However, the California legislature passed a new law that took effect in 2020 that extended the time period for filing a complaint with the DFEH to three years. This law has been interpreted to mean that if the last day to file a complaint with the DFEH prior to the new law would have occurred sometime in 2019, your complaint is now subject to the new three-year time limitation.
When does clock start running to file a lawsuit?
When there is only a single incident of sexual harassment, the one- or three-year deadline to file a lawsuit begins on the date the harassment occurred. What happens, however, when there have been multiple incidents of sexual harassment at work? When does the clock start to run for filing a lawsuit? Are you required to file a lawsuit every time you experience sexual harassment?
In many cases, workplace sexual harassment occurs repeatedly over time. Typically, the harassment starts small. It might include borderline or less offensive comments, or even seemingly innocent touching. But over time the conduct continues and becomes more serious.
Under California and Federal’s anti sexual harassment laws (FEHA and Title VII), you might not be required to file a lawsuit until:
- The conduct ends or is brought to an end, or
- You realize that further effort on your part to end the conduct would be futile
This is referred to as the “continuing violation” doctrine and helps victims who experience harassment file a lawsuit for acts of harassment, some of which might fall outside of the strict three-year period to file a workplace harassment claim.
When has the sexual harassment ended?
There are a number of ways in which the workplace sexual harassment could end. The company might recognize what has happened to you and reassign or even fire the harasser. The harassment might also come to an end if you quit or are forced to quit (constructive termination). In the latter case, generally you are required to file your sexual harassment lawsuit within three years of the date of the reassignment or termination/quitting.
Example:
Jen has repeatedly been harassed by her coworker Frank over the course of five years. Jen’s manager fires the harasser on July 1st. Jen is required to file a lawsuit within three years of the July 1st termination of her workplace harasser.
When would further efforts to stop the harassment be futile?
This occurs when you have made efforts to address the harassment and your employer indicates to you that despite your protest, it will not do anything to address the situation.
Example:
Paul complains to the company that his supervisor Derek is sexually harassing him. Derek has been sexually harassing him for five years. On July 1, 2020 after years of investigation, the company tells Paul it will take no action against Derek. Paul is on notice that any future efforts would be futile. If he does not file a lawsuit by June 30, 2023, Paul could lose his ability to sue the company for sexual harassment.
While the “continuing violation” rule is intended to assist sexual harassment victims in bringing claims, it can be risky to wait. If you file a lawsuit, you will have the burden to prove when the harassment stopped. This can complicate your case. So, you should always act promptly to address these types of issues.
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Section #13: How do you file a sexual harassment lawsuit?
Section #13
How do you file a sexual harassment lawsuit?
There are three ways a California employee can file a claim for workplace sexual harassment: by filing a complaint with the Department of Fair Employment and Housing, by filing a lawsuit in court, or by filing a charge with the EEOC.
Tip:
Filing a complaint can be tricky and involves observing strict requirements, including deadlines. You should always consult with an attorney before making a decision about the best way to pursue your claims.
Filing a Complaint with the Department of Fair Employment and Housing (DFEH)
In California, all people seeking to file a sexual harassment claim (even if you plan to file in court) must first do so by filing a complaint with Department of Fair Employment and Housing. Filing with the DFEH will launch an investigation that requires your employer to respond. You should be aware that if you decide to file a complaint with the DFEH on your own, you will not be appointed an attorney to represent you. You will be required to represent yourself throughout the process on your own unless you obtain an attorney
Tip:
If you think you might hire an attorney at any point during the process, you should strongly consider doing so at the beginning. Presenting and proving harassment cases requires skill. And the things you say, don’t say or emphasize during the course of the investigation could hurt your case. Many attorneys, especially those who work on contingency (you do not pay unless you win) are reluctant to get involved in cases that they have not been able to prepare from the beginning out of concern that something you have said or forgot to say might make the case more challenging.
Investigating the Claim
As part of the claim-filing process, you will be required to fill out a DFEH form describing the harassment you experienced. Upon submission, you will be required to schedule an appointment with an investigator that usually takes places 3-6 months later.
During your interview with the DFEH investigator, he or she will ask you to describe in detail what happened. You will need to be prepared to share the following details with the investigator.
- Dates
- Times
- Locations
- Witnesses
After your call, the investigator will contact your employer to get its response to the allegations.
The DFEH often times offers mediation to the parties to try and resolve the dispute. But if the dispute does not get resolved, the DFEH will continue to investigate to see if the law has been violated. If the agency determines that the law has not been violated the case is closed.
Tip:
If your case is closed by the DFEH is does not mean that the company did not violate the law. It also does not mean that you cannot pursue a case. If your case is closed but you believe that you have a strong case you should contact an attorney immediately to discuss how to move forward with your case.
If the agency finds that the law was violated, it might file a lawsuit in court on your behalf. However, given the number of complaints it handles each year, the DFEH is very selective about the cases it files. Often times the agency is looking to provide high-impact results against employers where harassment is rampant or built into the company’s policies, practices or culture.
Obtaining a Right to Sue Letter
If the DFEH closes your case, you can obtain a Right to Sue letter. The Right to Sue letter just means that you have satisfied the agency’s requirements before filing a lawsuit. Once you have the Right to Sue letter, you have one year to file a lawsuit in court. If you fail to file a lawsuit in that timeframe, you will be barred from filing the suit at a later date in the future.
Filing a Charge with the Equal Employment Opportunity Commission (EEOC)
Most types of sexual harassment against California’s workers are covered under the Fair Employment and Housing Act. That means that you will almost always want to file a claim with the DFEH. However, there are some types exceptions when a claim is not covered by the FEHA and can only be filed with the EEOC.
One of the downsides of filing a claim with the EEOC is that you are limited in the amount of damages you can recover. For pain and suffer and punitive damages, the law sets out caps or limits on these damages:
Limit on Emotional Distress & Punitive Damages:
| Employer Size: | Limit: |
|---|---|
| 1-14 employees | Federal law doesn't cover |
| 15-100 employees | $50,000 |
| 101-200 employees | $100,000 |
| 201-500 employees | $200,000 |
| 500+ employees | $300,000 |
While federal law places caps on the limits of these damages, you can still recover your full amount of your lost wages, including back pay and front pay.
Filing a Lawsuit in Court
Before you can file a sexual harassment lawsuit in California, you are first required to file a claim with the Department of Fair Employment and Housing in order to obtain what a “right to sue” letter. Obtaining the letter is a formality and just signifies that you have satisfied one of the requirements necessary to file a workplace harassment lawsuit. If you fail to obtain a right to sue before filing your lawsuit, your lawsuit and legal claims could be barred completely.
While many law firms have their own process, here’s an example of our process.
In many cases, if you have an attorney, filing a lawsuit is the best option. It might seem intimidating or even daunting, but this option provides significant benefits that the others do not.
A lawsuit can actually take less time than pursuing a claim with the DFEH. While lawsuits can take several years if they go to trial, most lawsuits never make it that far because they settle either early on or during a mediation. Part of the reason for this is that if you win your lawsuit, your employer will have to pay your attorney for his time spent on the case. That is in addition to paying the company’s attorneys (which are equally if not more costly) and any lost wages, emotional distress and punitive damages that you are awarded by a judge or jury. So, there is incentive to stop the bleeding before it becomes too bad.
Tip:
If you win in your case, regardless of the amount, the employer is required by law to pay your attorney’s fees and the costs of filing the lawsuit.
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Section #14: Do I have a case?
Section #14
Do I have a case?
Not all attorneys are created equal. Do you want someone that aggressively fights for you, that chases every last nickel your employer stole from you and who does not give discounts? To have the best opportunity for success, you should hire an attorney experienced in workplace sexual harassment cases.
These cases require experience and skill. Going up against your employer can feel daunting, but not if you have the help of a knowledgeable attorney by your side. Let us help.
Our California sexual harassment lawyers are experienced in handling these types of cases.
Drew Lewis, PC, led by its lead trial attorney Drew Lewis, has years of experience representing employees who have experienced sexual harassment in their workplace.
Drew has recovered millions of dollars for his clients. He understands how employers try to hide the facts and how to prove sexual harassment cases. And he does not give discounts to employers who have allowed sexual harassment in their workplace.
We offer a free case evaluation. And if we represent you, you do not pay us unless we win your case.
