Our California labor and employment lawyers recommend the following three steps to employees who have experienced workplace bullying that may meet the legal definition of sexual harassment or of non-sexual workplace harassment:
- Inform a supervisor, a member of the Human Resources department, or another designated person at their company.
- File a harassment complaint with the California Civil Rights Department (“CRD”).
- After receiving a “right to sue” notice from CRD, file a civil lawsuit in California Superior Court seeking monetary damages from the harasser and/or the employer.1
The Fair Employment and Housing Act–California’s main law on workplace harassment, also known as the FEHA–specifies that employees who experience harassment at work have the right to have their complaints addressed. In some cases, employees who suffer harassment may be able to sue their employers or harassers for monetary damages.2
Below, the California employment attorneys at Shouse Law Group address in more detail the steps that an employee facing harassment can take to assert his/her rights under California’s Fair Employment and Housing Act:
1. Step 1: Inform the Employer of the Harassment
The first thing an employee experiencing harassment should do is to inform their employer.
Of course, depending on the supervisory structure and internal politics of the company you work for, this may be easier said than done! For an employee dealing with the sensitive topic of a potential harassment case, knowing that you are talking to the right person will no doubt be a great comfort.
1.1. Whom should I complain to if I am being harassed?
California employment regulations require your employer to have a written anti-harassment policy in place and to communicate that policy to you. This harassment policy should specify the person to whom complaints of harassment should be directed.3
If the harassment is being committed by someone other than a supervisor (such as a coworker or even a customer or client), then you may feel most comfortable speaking to your immediate supervisor. But your employer should also provide options for you to complain about sexual harassment or other forms of harassment to someone else–since your supervisor may be the one doing the harassing.
Alternative channels for lodging a complaint with your employer about sexual or non-sexual harassment include:
- A human resources manager;
- A diversity or equal employment opportunity coordinator;
- A complaint hotline; or
- A designated ombudsperson for harassment and discrimination complaints.
1.2. Why should I report harassment to my employer first instead of going straight to CRD?
There are several reasons why it is usually a good idea to attempt to resolve instances of workplace harassment through your employer first.
First, in some cases, you may be able to put an immediate end to the harassment. Many employers, particularly those who stay informed about the FEHA and California harassment law, are aware of their duties to keep employees safe from harassment and will work hard to fulfill those.
Second, even if your initial complaint to your employer about sexual or non-sexual harassment does not result in an end to the harassment, it will still strengthen your argument if you end up bringing a harassment lawsuit, in two ways:
- by blocking any argument by the employer that you unreasonably failed to take advantage of its anti-harassment measures,4 and
- by enabling you to argue that the employer failed to take reasonable steps to prevent harassment, which is an important basis for employer liability for workplace harassment in California.5
1.3. Can I be retaliated against for complaining about workplace harassment?
California labor and employment law specifies very clearly that California employers may not retaliate against employees who complain about sexual harassment (or racial, religious, ethnic, national origin, age-based etc. harassment) in the workplace.6
For that reason, fear of workplace retaliation should not prevent you from raising a complaint of harassment–or of any form of workplace discrimination–to your employer first. If you do experience retaliation for your complaint, then you will have an additional employment law cause of action (such as a wrongful termination case) against your employer.
2. Step 2: File a Harassment Complaint with CRD
If going to the employer does not work, the next step would be for the employee to file a charge of harassment with the California Civil Rights Department (“CRD”). This step is required before an employee can file a harassment lawsuit in California.
CRD’s website offers an online form for submitting a retaliation complaint–or a pre-complaint inquiry for people who are not sure that they are ready to submit a full complaint.
2.1. What is the deadline for filing a harassment charge with CRD?
Generally speaking, a charge has to be filed with the CRD within three (3) years of an occurrence of harassment (or of retaliation for complaining about harassment).7
(Outside of California, a charge would have to be filed with the federal Equal Employment Opportunity Commission, or EEOC, within 180 days of an unlawful act.8)
As the labor and employment lawyers at Shouse Law Group are well aware, this three-year deadline in harassment cases can be more complicated than it seems. In many cases of workplace sexual or non-sexual harassment, It may be unclear just when disruptive or problematic behavior reached the legal definition of harassment (and thus when the clock started running).
Also, harassing behavior at work may come and go. Each time, the victim may assume that the harassment has come to an end—only to see it pop up again later.
Finally, it is not unusual for employees to put themselves in danger of missing the CRD harassment complaint deadline because they have complained to their employers–and are waiting patiently for the management of their company to complete an investigation and take action on the harassment.
For this reason, it can be beneficial to speak to a California employment attorney at this stage in the process–even though many people think a lawyer is not necessary until you are taking your employer to court. An attorney can help sort out the details of your case to make an educated guess as to when the CRD deadline will occur and to help make sure that you do everything you can to protect your rights in your workplace harassment case.
3. Step 3: File a Harassment Lawsuit Against Your Harasser and/or Your Employer
Under the Fair Employment and Housing Act, California employees may file lawsuits against their employers for harassment and/or discrimination only after receiving a “right to sue” notice from the CRD.9
When you file your harassment complaint with the CRD, as described above, you have two options:
- Request that CRD issue a “right to sue” notice immediately, or
- Decline to make such a request. In this case, CRD will still issue a “right to sue” notice–but only after they have conducted and completed an investigation of your harassment complaint.10
Once you receive your “right to sue” notice, you have one (1) year from the date of the notice to file a lawsuit over the workplace harassment you experienced.11
(This deadline can sometimes be extended if you file harassment charges with both the CRD and the federal Equal Employment Opportunity Commission (EEOC).12)
3.1. If I experience workplace harassment, should I sue my employer or the person who harassed me?
Many employees facing harassment are confused as to whom they should sue–the harasser or their employer. This is a decision best made in consultation with an experienced California labor and employment attorney, keeping in mind that:
- The employer is likely to have “deeper pockets”–that is, more money available to compensate you for the suffering you experienced as a result of the harassment; and
- Who harassed you will affect how much responsibility your employer bears for the harassment.
For example, if you experience sexual or other kinds of workplace harassment at the hands of your supervisor, then your employer is strictly liable for the harassment.
But if you were harassed by a non-supervisor coworker or someone who did not work for your employer (like a client), then your employer is only liable if they were negligent–that is, if they failed to take proper measures to prevent harassment and/or failed to respond adequately to the harassment once it occurred.13
Call us for help…
For questions about the rights of employees who experience workplace harassment under California’s Fair Employment and Housing Act, or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.
We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- Government Code 12965 GC — Civil action in name of department; group or class complaint; relief; tolling of statute of limitations [workplace harassment lawsuits]. (“(b) If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on his or her request, the right- to-sue notice. This notice shall indicate that the person claiming to be aggrieved may bring a civil action under this part against the person, employer, labor organization, or employment agency named in the verified complaint within one year from the date of that notice. If the person claiming to be aggrieved does not request a right-to-sue notice, the department shall issue the notice upon completion of its investigation, and not later than one year after the filing of the complaint.”)
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California sexual/workplace harassment law]. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: . . . (j)(1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment. (2) The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment. (3) An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action. (4)(A) For purposes of this subdivision only, “employer” means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of “employer” in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision. (B) Notwithstanding subparagraph (A), for purposes of this subdivision, “employer” does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2. (C) For purposes of this subdivision, “harassment” because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire. (5) For purposes of this subdivision, “a person providing services pursuant to a contract” means a person who meets all of the following criteria: (A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance. (B) The person is customarily engaged in an independently established business. (C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer’s work. (k) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”)
- California Code of Regulations 11023 CCR — Harassment and Discrimination Prevention and Correction. (“(b) In addition to distributing the Department’s CRD-185 brochure on sexual harassment, or an alternative writing that complies with Government Code section 12950, an employer shall develop a harassment, discrimination, and retaliation prevention policy that: . . .(5) Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following: (A) Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or (B) A complaint hotline; and/or (C) Access to an ombudsperson; and/or (D) Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.”)
- State Dep’t of Health Servs. v. Superior Court (McGinnis) (2003) 31 Cal.4th 1026, 1034.(“We conclude that an employer is strictly liable under the FEHA for sexual harassment by a supervisor. We further conclude that the avoidable consequences doctrine applies to damage claims under the FEHA, and that under that doctrine a plaintiff’s recoverable damages do not include those damages that the plaintiff could have avoided with reasonable effort and without undue risk, expense, or humiliation.”)
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California sexual/workplace harassment law], endnote 1 above.
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California sexual/workplace harassment and employment discrimination law]. (“(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”)
- Government Code 12960 GC — Procedure for prevention and elimination of unlawful employment practices; application of article; complaints; limitations [workplace harassment complaints to CRD]. (“(d) No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred . . .”); California Assembly Bill 9 (2019).
- 42 U.S.C. 2000e-5. (“(e) . . . 1)A charge under this section [federal employment discrimination and harassment law] shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred . . . .”)
- Government Code 12965 GC — Civil action in name of department; group or class complaint; relief; tolling of statute of limitations [workplace harassment lawsuits], endnote 2 above. 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.”).
- Same. See also Government Code 12963 GC — Investigation by department after filing of complaint. (“After the filing of any complaint alleging facts sufficient to constitute a violation of any of the provisions of this part [including California law against workplace sexual or non-sexual harassment], the department shall make prompt investigation in connection therewith.”)
- Government Code 12965 GC — Civil action in name of department; group or class complaint; relief; tolling of statute of limitations [workplace harassment lawsuits], endnote 2 above.
- See Department of Health Services v. Superior Court (2001), 94 Cal. App. 4th 14.