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The 3 steps to file a workplace harassment lawsuit in California are to inform the appropriate personnel at work of the harassment, file a harassment complaint with DFEH, and obtain a “right to sue” letter to initiate the lawsuit. This gives the parties an opportunity to resolve the case quickly and easily out of court. Victims cannot sue immediately.
What steps do I need to take to file a workplace harassment lawsuit?
In order to file a lawsuit for workplace harassment, victims in California first have to do 3 things:
- inform their employer of the harassment,
- file a harassment complaint with the California Department of Fair Employment and Housing (DFEH), and
- obtain a “right to sue” letter from the DFEH.
Only after receiving this “right to sue” letter can the worker bring a lawsuit against his or her employer for harassment.
Throughout this process, the legal advice of a workplace harassment lawyer from a reputable law firm can help.
1. Inform the employer
Workers who feel that they are being harassed in the workplace should start by informing their employer. In many cases, the employer will take action to end the harassment and resolve the issue. If the employer takes no action, it will strengthen the worker’s case if they need to file a lawsuit.
California law requires employers to have and to disseminate a written anti-harassment policy. This policy should specify who will field complaints of harassment in the workplace.1 When the harassment is done by a non-supervisor, like a coworker or even a client or customer, most policies will guide harassed workers to their supervisor. However, policies must also provide an alternative reporting system for when the harasser is a supervisory employee. These often direct workers to report the harassment to a:
- human resources (HR) officer,
- complaint hotline,
- diversity coordinator,
- designated officer for discrimination and harassment complaints, or
- coordinator for equal employment opportunity, or an EEO coordinator.
In California, a “supervisor” is anyone who, using their independent judgment:
- can hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees,
- has the responsibility to direct other employees,
- has the responsibility to adjust employee grievances, or
- can effectively recommend any of these actions.2
Lots of employers take their legal duty to stop workplace harassment very seriously. Notifying them of the situation can be all that it takes for the employer to take corrective action to get the harassment to stop.
Even if nothing gets done, it is usually still wise to begin by notifying the employer of the harassment. If they fail to do anything about it, workers can use that against the employer, later on in the harassment case.
Additionally, California law forbids employers from retaliating against workers who complain of workplace harassment. Fear of retaliation should never stop workers from complaining of harassment.
2. File a complaint with the DFEH
If the harassment persists, the next step is to file a harassment complaint with the California Department of Fair Employment and Housing (DFEH). This step is required before a worker can file a harassment lawsuit against his or her employer. However, workers can request a “right to sue” letter from the DFEH, immediately, rather than wait for the agency to conduct an investigation.
The DFEH has an online intake form to initiate the complaint process. This form is for reporting any type of workplace discrimination, including harassment. The information on the form can be submitted in several ways:
- online, by creating an account with the Cal Civil Rights System (CCRS),
- by mail, using a printable intake form, or
- by calling the DFEH at 800-884-1684.
On this form, workers can detail the harassment that they have been subjected to in the workplace. They can include facts about:
- racial epithets or ethnic slurs used by coworkers,
- female employees or interns being subjected to quid pro quo sexual harassment,
- supervisors giving bad work performance reviews after their sexual advances were turned down, or
- any other unwelcome and inappropriate workplace conduct.
Aggrieved workers have 3 years from the date of the harassment to file this intake form.3 While this seems like a long statute of limitations, the time limits can sneak up on workers who have been harassed. This is especially common if:
- they are waiting for their employer to resolve the situation,
- the harassment has come and gone over time, or
- it is unclear when the unwelcome workplace conduct rose to the level of harassment.
Based on the information provided on the intake form, the DFEH will decide whether to investigate further. It will only investigate discrimination and harassment claims if they would fall under one of the California civil rights laws that the agency enforces. These are the:
- Fair Employment and Housing Act (FEHA),
- Unruh Civil Rights Act,
- Disabled Persons Act, and
- Ralph Civil Rights Act.
Note that the DFEH does not enforce federal law. Federal employment laws, like Title VII, are generally enforced by the Equal Employment Opportunity Commission (EEOC).
If the situation would not be enforced a California anti-harassment law, the DFEH will not accept the case. It may issue a “right to sue” letter so the worker can proceed on his or her own.
If the harassment would be enforced by one of these laws, the DFEH may take the case. If they do, the DFEH will send the aggrieved worker a complaint. When he or she signs the complaint and returns it to the DFEH, it will be delivered to the harasser or employer, who becomes the respondent.
When the respondent answers the complaint, the DFEH will initiate its investigation.
If the DFEH finds no reasonable cause to believe that unlawful harassment occurred, the DFEH can issue a “right to sue” and let the worker proceed on his or her own.
If the DFEH investigation finds that there is reasonable cause to believe that there was harassment, it may require the parties to go through mediation to resolve the issue. If the case is not settled through mediation, the DFEH may file a lawsuit in court against the employer on the worker’s behalf.
Workers can forgo the DFEH investigation by filing the intake form and then immediately requesting a “right to sue” letter.
3. Obtain a “right to sue” letter from the DFEH
Finally, workers have to obtain a “right to sue” letter from the DFEH before they can file a lawsuit against their employer or their harasser.
The Fair Employment and Housing Act (FEHA) requires a “right to sue” letter from the DFEH before workers can bring their employer to court.4
Once the letter is received, workers have 1 year to file a lawsuit.5 This deadline may be extended if harassment charges were also filed with the federal EEOC.6
What about claims for sexual harassment or a hostile work environment?
These steps apply to both sexual harassment cases and to hostile working environment claims, as well.
Sexual harassment is unwelcome conduct that targets someone based on their sex. It may be the most common type of harassment in the workplace. However, it is not the only type. Others include harassment that target the victim based on a protected class, like his or her:
- age,
- gender or gender identity,
- physical or mental disability,
- sexual orientation,
- religion,
- race,
- national origin, or
- any other protected trait.
A hostile working environment is how the victim experienced the harassment. Under California state law, workplace harassment can come in 2 shapes:
- quid pro quo harassment, where a supervisor conditions a workplace benefit on harassing conduct, like sexual favors, and
- hostile working environment harassment, where inappropriate workplace conduct that targets a protected trait is so severe or pervasive that a reasonable person would find that it creates an abusive working environment for the target of the harassing behavior.7
By establishing an attorney-client relationship with a harassment attorney or employment attorney in the state of California, victims of sexual harassment or a hostile working environment can take the reasonable steps necessary to resolve the situation.
Can my employer retaliate against me for complaining about harassment?
No, employers are forbidden from retaliating against workers who complain about workplace harassment. If they do retaliate, it can lead to an additional cause of action for the worker to file in his or her lawsuit.
What damages are available in California?
Successful harassment lawsuits can recover compensation for the victim’s:
- medical expenses, if the stress of the harassment led to a diagnosable medical condition,
- lost wages, including future wages, and
- emotional distress.
In certain severe cases, punitive damages may be awarded.
Legal References:
- California Code of Regulations 11023 CCR.
- California Government Code 12926(t) GC.
- California Government Code 12960 GC.
- California Government Code 12965 GC.
- California Government Code 12965 GC.
- California Government Code 12965 GC. See also Ali Zaslav and Jessica Dean, Senate passes sweeping overhaul of workplace sexual misconduct law CNN (February 10, 2022)(“The bill, called Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, bans forced arbitration in cases involving sexual misconduct and allows victims the option of bringing up the dispute in federal, tribal or state court.”).
- See, e.g., Mogilefsky v. Superior Court, 20 Cal.App.4th 1409 (1993) and Hughes v. Pair, 46 Cal.4th 1035 (2009).
About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
