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    Employment Law Divison

    California Sexual Harassment Law – A Guide for Victims

    California law prohibits sexual harassment in the workplace. This includes everything from colleagues directing inappropriate slurs at you to your boss demanding sexual favors in exchange for employment benefits.

    If you are a workplace sexual harassment victim, you do not have to suffer in silence for fear of losing your job. Here at Shouse Law Group, our experienced California employment attorneys fight to stop to the offending behavior and win you a financial recovery.

    Keep reading to learn more about how state and federal law protects you and how our California sexual harassment lawyers can help your case.

    Two Types of Sexual Harassment

    California law recognizes two types of workplace sexual harassment that you can sue for, and many victims experience both types. These are:

    1. Hostile Work Environment (HWE) Sexual Harassment and
    2. Quid Pro Quo Sexual Harassment.1

    1) Hostile Work Environment (HWE) Sexual Harassment

    In California, you have a claim for hostile work environment (HWE) sexual harassment in the workplace if the following three things are true:

    1. You are the recipient of unwelcome advances, conduct or comments;
    2. This harassment is in some sense based on your sex; and
    3. This harassment is severe or pervasive enough to alter the conditions of employment.2

    Therefore, the harassment has to be more than just occasional or trivial.3 To determine whether there is an HWE, courts look at all of the evidence available and whether a reasonable person in your position would feel harassed.4

    Unwanted conduct that commonly creates a HWE include:

    • Sexual talk, gestures, comments, or jokes,
    • Showing or sharing pornography or other sexual content,
    • Inappropriate touching, and/or
    • Sexual propositions.

    Example: Mary feels unsafe and unable to get her work done because her co-worker Mark repeatedly leers at her, makes sexually charged slurs at her, and sidles against her when they pass in the hallway. This is a case of HWE because Mark’s conduct is 1) unwelcome, 2) based on Mary’s sex, and 3) severe and pervasive to the point that it alters Mary’s condition of employment.

    Note that a HWE can be perpetrated by anyone connected to your workplace such as your boss, your supervisor, your colleague, an inferior, a third-party contractor, or even a customer, client, or third-party vendor.5

    Graphic spelling out five examples of sexual harassment in the workplace

    2) Quid Pro Quo Sexual Harassment

    Quid pro quo sexual harassment cases arise in California when your boss conditions a workplace benefit on you performing sexual favors. Then if you refuse, your boss carries through with their threat, such as:

    • Firing or demoting you,
    • Not hiring you, or
    • Denying you a promotion, raise, job assignment of choice, or better work hours.

    To prove a quid pro quo case in California, you need to show five things:

    1. You worked for the harasser, applied for a job with the harasser, or provided services to the harasser,
    2. The harasser – or one of their agents – made unwanted sexual advances or other conduct,
    3. A favorable working condition was made contingent, by words or insinuation, on those sexual requests,
    4. You were harmed by this harassing conduct, and
    5. The harasser’s actions were a substantial factor in causing that harm.6

    Note that the harasser in quid pro quo cases must be your boss or a superior. This is different from HWE cases, where the harasser can be anyone in your workplace, including co-workers and underlings.7

    Furthermore, you have a quid pro quo case only if your boss follows through on their threat to deny you a workplace benefit. Even if your boss does not retaliate, however, their threatening behavior may still amount to a HWE.8

    If your boss is giving special treatment to a co-worker in exchange for sexual favors, that may also amount to a HWE whether or not your co-workers welcome your boss’s advances.9 For instance, you can claim you were harmed because of the supervisor’s sexual favoritism.

    Example: Your supervisor has numerous sexual affairs with female subordinates. Those employees get raises and promotions that are not justified by their job performance. Therefore, you may have a claim for a hostile working environment.

    Female boss in a business suit harassing an annoyed male employee by touching his back and holding his tie in a suggestive manner

    Sexual harassment victims can be male or female.

    What are my employer’s duties to me?

    California employers must provide you with a written policy about preventing and addressing sexual harassment, discrimination, and retaliation. You are then required to confirm that you received a copy (which can be done with a printed form or email acknowledgement).

    This policy must declare that sexual harassment of employees is forbidden whether it be by managers, supervisors, co-workers or third parties. The policy must also lay out the process that will occur if you file a sexual harassment complaint with the employer. This includes the employer:

    1. Getting back to you promptly,
    2. Documenting the entire investigation and taking all appropriate steps,
    3. Handling the matter with as much confidentiality as reasonable,
    4. Reassuring you that you will not be retaliated against for for filing a complaint (or being involved in an investigation of another employee’s complaint),
    5. Relying on qualified personnel to justly and carefully handle your complaint, and
    6. Resolving the case in a timely manner.

    The policy must also provide you with a way of reporting sexual harassment to someone other than your supervisor. If a supervisor was the one who harassed you, you can instead report it to a designated representative like a consultant in the human resources (HR) department.

    In addition, your employer has to give you basic educational information about sexual harassment, such as this Civil Rights Department information poster.

    Finally, sexual harassment prevention training is required for all staff at companies with five or more employees. This includes:

    • 1 hour of training for non-supervisory employees and
    • 2 hours of training for supervisory employees.

    If your employer fails to provide sexual harassment prevention training, this can be used to help establish employer liability if you are then sexually harassed in the workplace.10

    Yellow binder with the label "Policies & Procedures" along with a pile of paper and two spiral notebooks

    If more than 10% of your employer’s workforce do not speak English, then the sexual harassment policy information must be given to them in their native language.

    I was harassed at work – what next?

    Do not wait to contact a California sexual harassment lawyer to discuss your case. If you delay too long, the statute of limitations for filing a claim may have passed, and you may be out of options.

    In the meantime, follow these three steps:

    1. Report. Report each incident of sexual harassment to your employer in accordance with the written policy they gave you. Make these reports very detailed, including the names of any witnesses to your harassment. Also keep copies of everything you send and receive, and request “read receipts” of your emails if possible. If you do not inform your employer about your the sexual harassment, they may be able to avoid liability.
    2. Document. Keep any and all proof of the sexual harassment, and note the times and dates. Examples of evidence may include lewd videos, photographs, emails, text messages, voicemails, memos, and handwritten notes. Also write down your memories of what occurred. However, be careful not to record any conversations unless you have every participant’s consent: This is because California is an “all-party consent state,” and you can be prosecuted for unlawful recordings.11
    3. Avoid Social Media. Once you post something online, it is no longer private and can be used against you. As much as you may want to vent about your harassment, keep quiet for now.

    If you are lucky, your employer will take your reports seriously and fix the situation. Depending on the case, this could include:

    • Firing or ending the business relationship with the harasser,
    • Moving you to a location where you will not have to deal with the harasser, and/or
    • Reassigning you off of a project that requires interaction with the known harasser.

    Filing a Complaint

    If your employer fails to remedy the harassment, your next step is to file an administrative complaint with either:

    CRD filings generally have to be made within three years of the most recent instance of sexually harassing behavior. If you (the “complainant”) learn of the behavior after the three years have expired, you can have a 90-day extension to file.

    EEOC filings under federal law have to be made within 180 days of the most recent incident of sexually harassing behavior. This window is extended to 300 days if a claim is also being filed with the CRD.12

    Upon receiving your complaint, the EEOC or CRD may conduct an investigation of your case and try to mediate the matter. This would be the ideal scenario because the case could be resolved quickly without paying any court filing fees.

    Filing a Lawsuit

    If the matter remains unresolved, the EEOC or CRD will issue you a right to sue letter. This allows you to proceed with the case on your own and file a traditional civil lawsuit

    Once you receive a right to sue letter, you have one year to file your lawsuit.13 Your employer no doubt has a high-powered law firm on retainer intent on scaring you into withdrawing your complaint. Therefore, it is important you have an experienced California employment attorney handling your lawsuit for you.

    We have had great success in resolving these cases quickly with a giant settlement by sending a strongly-worded demand letter to the employer. Businesses are anxious to avoid controversy, and they are usually willing to negotiate.

    Note that if your employer has EPLI insurance, then the insurance company rather than your employer will be in charge of its defense.

    Male boss in a business suit putting his hand on a female employee's shoulder in an act of sexual harassment

    California employers are strictly liable for the harassment committed by supervisors.

    Are these cases hard to win?

    It depends on the available evidence and who sexually harassed you.

    The easiest workplace sexual harassment cases to win in California are when you sue your employer for harassment by your boss. This is because employers are “strictly liable” for the conduct of supervisors: You do not have to prove that your employer was negligent in order to recover damages; all you have to prove is that the harassment happened.14

    If you were harassed by a co-worker or a third party (such as a vendor, client or deliveryman), the employer is liable for damages only if you can prove it was negligent. This means that the employer:

    • Knew or should have known of the harassment and
    • Failed to take appropriate corrective action.15

    The extent of your employer’s control over the situation will matter. If it would have been easy for your employer to prevent or stop the harassment, your employer is more likely to be held liable for it.

    Even if your employer was not negligent, you can still sue the co-worker or third party who harassed you. However, they may not have the deep pockets your employer has.

    Can I still sue if I waived my rights in my employment contract?

    Yes. In California, you can still file sexual harassment complaints if you signed an agreement that waived your rights to sue or disparage your employer.16 Even if you agreed to arbitration as a condition of your employment contract, you can still file sexual harassment cases in civil court.17

    Employers cannot require you to release them from liability for sexually harassing behavior in exchange for:

    • A raise,
    • A bonus,
    • Employment, or
    • Continued employment.

    Any agreement or contract that does this is not enforceable and is a violation of public policy.18 The only exception is a negotiated settlement agreement to resolve a lawsuit or claim against the employer.19

    Male boss putting his hands on the shoulders of a male employee in an act of sexual harassmenet

    Sexual harassment can occur between people of the same sexes as well.

    What money can I get?

    As a victim of workplace sexual harassment in California, you would be entitled to compensatory damages in your lawsuit. These include:

    • Lost wages (including bonuses, sick time, vacation time, stock options, and other benefits such as the value of your health insurance and any lost promotions),
    • Pain and suffering,
    • Mental anguish and harm to your well-being, and
    • Loss of reputation.

    We would also ask for reimbursement for your:

    • Attorney’s fees,
    • Court costs, and
    • Expert witness fees.20

    If you resigned from your job due to intolerable working conditions, we can also claim “wrongful constructive termination” and pursue all the back pay, front pay, and benefits you would have received had you not been forced to quit.

    If you wish, we can also fight for you to be reinstated to your old job. In practice many sexual harassment victims prefer not to return to their old workplaces. Though if you were a public employee, you may prefer to go back to your old job in order to contribute more years of service and maximize your pension.

    Punitive Damages

    California courts can also award you punitive damages meant to punish the defendant. To get punitive damages in a workplace sexual harassment lawsuit, you would have to prove that the defendant acted with either:

    • Malice, which is hostile conduct intended to deliberately injure you,
    • Oppression, which means subjecting you to unjust hardship by misusing power, and/or
    • Fraud, which is intentional deception.21

    In many cases, punitive damages can be much higher than compensatory damages. Though if you sue in federal court, punitive damages are capped at:

    • $50,000 if your employer has 15 to 100 employees,
    • $100,000 if your employer has 101 to 200 employees,
    • $200,000 if your employer has 201 to 500 employees, and
    • $300,000 if your employer has more than 500 employees.22

    What if I lose?

    If you lose your workplace sexual harassment lawsuit, you could pay damages to your employers.

    However, recent amendments to the law have restricted when employers can recover these damages. Now, courts can only give employers these damages if your claim was frivolous.23

    In our experience, we can usually settle sexual harassment claims in our clients’ favor with a large financial award.

    Which laws protect me?

    Sexual harassment is prohibited under both federal and state law.

    The primary federal law is Title VII of the Civil Rights Act of 1964, though it was not until 1986 that the U.S. Supreme Court in Meritor Savings Bank v. Vinson explicitly recognized sexual harassment as a form of workplace discrimination that violates Title VII. Also, Title VII applies only to employers with 15 or more employees.24

    The primary California state law that prohibits sexual harassment is the Fair Employment and Housing Act (FEHA), and it is a lot broader than Title VII. Codified in Government Code 12940, FEHA applies to private and public employers of any size. Furthermore, FEHA applies whether you are a:

    • Hourly or salaried employee,
    • An independent contractor, including a freelancer,
    • A volunteer, or
    • A paid or unpaid intern.

    The recent #MeToo movement prompted California Governor Gavin Newsom to sign into law more protections for sexual harassment victims, as summarized in the following chart.

    California Law Sexual Harassment Protections
    AB 9 (2019) – “Stop Harassment and Reporting Extension (SHARE)”
    • The statute of limitations for filing a FEHA complaint was extended from one to three years.
    AB 51 (2019) – “Employment Discrimination: Enforcement”
    • Applicants and employees no longer have to waive their right to arbitrate FEHA claims as a condition of being employed.
    • Applicants and employees who refuse to sign a waiver cannot be discriminated or retaliated against by their employer.

    This law was geared to help retail, hospitality, and food service workers, who are largely women and suffer high rates of sexual harassment.
    AB 547 (2019) – “Janitorial Workers: Sexual Violence and Harassment Prevention Training”
    • The DLSE (Division of Labor Standards Enforcement) is required to create sexual harassment prevention training for janitorial and construction sector employers.
    • The DSLE also has to provide a list of qualified organizations and peer trainers to provide training for non-supervisory workers.

    This bill adds to AB 1978 (2016), signed into law by Governor Jerry Brown, which mandated prevention training for janitorial and construction employees every two years.
    SB 1343 (2018) – “Employers: Sexual Harassment Training: Requirements“
    • Employers with five or more employees must provide sexual harassment prevention training to both supervisors and non-supervisors.

    Previously, the only people who had to take sexual harassment training were supervisors at employers with 50 or more employees.

    Note that any settlement agreement in a workplace sexual harassment case cannot include a gag provision. Any part of the settlement that prevents the disclosure of information about the harassment is unenforceable in court.25

    Can my harasser go to jail?

    Sexual harassment can be a crime, especially if it involves physical violence or threats. Depending on your case, you can file a police report on the grounds that your harasser committed:

    • Sexual assault (rape),
    • Attempted rape,
    • Sexual battery,
    • Battery, or
    • Stalking.

    You should contact the police right away if you are a victim of any of these crimes. If you were sexually assaulted, there is a limited amount of time you can take to a rape kit, which is critical evidence.

    Note that the criminal justice system is entirely separate from administrative and civil courts. Filing a complaint with the Civil Rights Department or filing a lawsuit will not result in criminal penalties: The most you can get is a financial settlement.

    Also, if you decide to file a police report, there is no guarantee that your harasser will be charged. The district attorney has discretion whether or not to press charges, and even if it does, you are not a party to the case and have no control over how the case is prosecuted.

    Furthermore, prosecutors have the burden to prove guilt beyond a reasonable doubt, which is a much higher standard than administrative or civil courts require. Therefore, it is possible that a sexual harasser can be found liable in a civil lawsuit but acquitted on any related criminal charges.

    Graphic that shows examples of sexual harassment crimes

    What about non-sexual workplace harassment?

    Workplace harassment does not have to be sexual in nature to create a hostile work environment. In fact, your employer’s written policy must state that it is unlawful for you to be discriminated against or harassed based on any of your protected characteristics, including your:

    • Age,
    • Race,
    • Gender,
    • Gender identity,
    • Gender expression,
    • Sexual orientation,
    • National origin,
    • Ancestry,
    • Physical disability,
    • Mental disability,
    • Religion,
    • Genetic information,
    • Medical condition,
    • Marital status, and
    • Military and veteran status.26

    If you are a victim of a non-sexual hostile work environment, you can go through the same legal process described above: This includes reporting it to your employer, filing a complaint with the CRD, and, if necessary, filing a lawsuit.

    Note that there are no “non-sexual quid pro quo harassment” cases. A quid pro quo case must involve sexual harassment for you to have grounds to sue.

    Close-up of a boss's hand touching an employee's hand over a computer mouse in an act of sexual harassment.

    Be sure to document every incident of sexual harassment since you may need it as evidence.

    Additional Resources

    For more information, refer to the following:

    1. Workplace Fairness – Nonprofit that provides education on workers’ rights and has detailed sexual harassment guides.
    2. National Women’s Law Center – Advocacy group focused on justice and opportunities for women.
    3. California Coalition Against Sexual Assault – Advocates for public policy reform and services.
    4. What is sexual harassment? – Information and resources by RAINN (Rape, Abuse & Incest National Network).
    5. What is sexual harassment? – Overview by the United Nations.

    For more discussion, see our article on what to do if you are being sexually harassed at work.

    Legal References

    1. Holmes v. Petrovich Development Co. (Cal. App. 2011) 191 Cal.App.4th 1047.
    2. Hughes v. Pair (Cal. 2009) 46 Cal.4th 1035.
    3. Same.
    4. California Government Code 12923(c).
    5. See same.
    6. See Mogilefsky v. Superior Court (Cal. App. 1993) 20 Cal.App.4th 1409. CACI 2520.
    7. Same.
    8. Hughes v. Pair (Cal. 2009) 46 Cal.4th 1035.
    9. Miller v. Department of Corrections (Cal. 2005) 36 Cal.4th 446.
    10. California Government Code 12950(b). California Government Code 12940. California Code of Regulations, Title 2, 11023(b). California Government Code 12950.1.
    11. California Penal Code Section 632.
    12. California Government Code 12960. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e).
    13. California Government Code 12960. See also: Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal. 5th 918; Blue Fountain Pools & Spas Inc. v. Superior Court (Court of Appeal, 2020) 53 Cal. App. 5th 239.
    14. California Government Code 12940. Department of Health Services v. Superior Court (Cal. App. 2011) 94 Cal.App.4th 14.
    15. California Government Code 12940.
    16. California Government Code 12964.5. SB 1300 (2018). See also Ali Zaslav and Jessica Dean, Senate passes sweeping overhaul of workplace sexual misconduct law CNN (February 10, 2022).
    17. AB 51 (2019). Viking River Cruises, Inc. v. Moriana, 596 U.S. (2022). See also H.R. 4445 – Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA).
    18. California Government Code 12964.5(b).
    19. California Government Code 12964.5(c)(1).
    20. California Government Code 12965(b).
    21. California Civil Code 3294.
    22. EEOC – Remedies for Employment Discrimination.
    23. SB 1300 (2018).
    24. Meritor Savings Bank v. Vinson (1986) 477 U.S. 57.
    25. California Code of Civil Procedure 1001. SB 820 (2018).
    26. California Government Code 12940. California Government Code 12926.

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