How to File a Sexual Harassment Complaint in California

The employees of California enterprises are supposed to be able to work in an environment that is free of sexual harassment. California employment laws require employers in the state to give employees a copy of a written policy about preventing and addressing sexual harassment, discrimination, and retaliation.

Employees who receive the policy must confirm that they have received a copy. They do this by returning a printed form or an email acknowledgement to the employer.

Included in the policy should be a provision to the effect that the company forbids the sexual harassment of employees. Neither managers, supervisors, colleagues, nor third parties, e.g., clients and contractors, should engage in it.

The policy should also state what the company does if an employee submits a complaint to the employer about sexual harassment. The response of the employer should entail the following:

• Responding to the employee within a reasonable amount of time
• Documenting its investigation and taking appropriate steps in response to the results
• Handling the case as confidentially as possible
• Assuring employees that they will not experience retaliation for complaining about harassment
• Not retaliating against any other person involved in the investigation of an employee’s complaint
• Relying on qualified personnel to handle the complaint competently and fairly
• Resolving the case in a timely manner.

Unwanted conduct of the type that would qualify as that which creates a hostile workplace environment would be the following: The policy must also notify an employee of the procedure for reporting sexual harassment to someone other than their supervisor. Generally, if an employee has been harassed by their supervisor, they can report it to a representative who is designated by the employer, e.g., an individual in the human resources department.

In addition, an employer has to provide employees with basic information about sexual harassment and train all employees on sexual harassment prevention in companies with five or more employees. The training should include the following:

• 1 hour of training for employees who do not work in supervisory roles
• 2 hours of training for employees who work in supervisory roles.

If an employer who should provide the training does not do so, this fact can help establish the employer’s liability to any employee who experiences sexual harassment in the workplace. Employers would want to consult with an attorney about complying with the requirements of California employment laws.

How Do I Know if Am I Victim of Sexual Harassment in the Workplace?

Of course, a working individual has to recognize the conduct in their workplace that constitutes sexual harassment. If an employee believes that they are subjected to sexual harassment at work, e.g. because their supervisor has demanded sexual favors in exchange for a promotion, but they are not certain, they would want to consult a California attorney for guidance.

In California, any of the following three situations would give an employee grounds for claiming that they are the victim of hostile work environment sexual harassment at their job:

• Another individual at the worksite makes advances, engages in conduct, or makes comments that are unwelcome.
• The harassing actions target the victim because of their gender.
• This harassment is severe or pervasive enough to change the conditions of employment.

The requirement that the harassment be severe or pervasive is an important qualification. To justify a complaint, harassment has to be more than trivial. Or, it has to happen more often than just occasionally. The harassment has to be severe and pervasive.

To determine whether harassment is of the type to justify a complaint, an employer or a court considers all of the available evidence. They would ask whether a reasonable person in the position of the complaining employee would feel harassed.

• Talk, gestures, comments, or jokes about sex,
• Exhibiting pornography or other sexual content in the workplace,
• Inappropriate touching, and/or
• Sexual propositions.

For example, a female employee may feel harassed when a colleague directs sexually explicit comments at her and then “runs into” her when she walks down a hallway in the building where they work. Her colleague has done this repeatedly over a period of 12 to 16 months, and by the time she files a complaint, she finds it interferes with her ability to do her job.

An employee will be able to help the cause of obtaining relief from harassment in a number of ways if they create a detailed record of the harassment as follows:

• Reporting: An employee wants to make a detailed report of each incident of sexual harassment to their employer as may be required by the policy with which they were provided. Their reports should include the names of others who may have witnessed the harassment. They should, of course, keep copies of everything they give their employer as well as every communication they receive from their employer in connection with the issue.
• Document: An employee should carefully and thoroughly document every instance of sexual harassment. They want to note the day and time of each incident. No incident is too trivial to note, as even an incident that may seem trivial alone could be used to show a pervasive pattern of harassment.
• Retain Any Proof: An employee wants to keep any and all proof of the sexual harassment. For example, they want to keep inappropriate videos, photographs, emails, text messages, voicemails, memos, and handwritten notes. An employee should not make a recording of conversations unless they have gotten the consent of every participant. To do so risks violating California law regarding recording conversations.
• Do Not Comment on the Situation on Social Media: Posting content about the harassment online means that it is not private and might be used against the person who posts it. So, an employee wants to keep information off social media and discuss it only to the extent that they know the communication will be kept confidential by a trustworthy confidant.

What Are the Different Kinds of Sexual Harassment Claims?

Under both California and federal law, there are two types of workplace sexual harassment as follows:

• Hostile work environment sexual harassment and
• Quid pro quo sexual harassment.

An employee may complain to their employer, state and federal agencies or file a lawsuit claiming either or both types. A victim might experience both types.

Can I Sue My Employer if I’m a Victim of Sexual Harassment in the Workplace?

Hopefully, an employer would respond favorably to an employee’s report of harassment and take steps to bring it to an end. They might do any of the following:

• Firing the harasser
• Ending their business relationship with the person who has engaged in the harassment, e.g., a client, customer, or contractor
• Transferring the employee to a location or assignment where they would no longer have to deal with the harasser.

However, if an employee submits a complaint to their employer and the employer does not address the problem effectively, the employee’s next step would be to submit a claim to either of the following government agencies:

• The federal U.S. Equal Employment Opportunity Commission (EEOC) and/or
• The California Civil Rights Department (CRD).

A claim should be filed with the CRD within 3 years of the most recent episode of sexually harassing behavior.

An EEOC or CRD claim has to be filed within 180 days after the last incident of harassment. The deadline is extended to 300 days if the harassed employee also files a claim with the CRD.

Both the EEOC or the CRD may conduct an investigation of an employee’s claim. They would also try to get a resolution through mediation. If an employee is offered mediation, they should participate and attempt to reach a settlement. This would be the fastest and least expensive way to resolve the matter.

If the agency is not able to resolve the problem, then it gives the employee a right-to-sue letter. This gives the employee the right to proceed with the case on their own by filing a sexual harassment lawsuit in a civil court within 1 year of receiving the letter.

Do I Need a Lawyer to File a Sexual Harassment Claim?

If sexual harassment is making your life at work intolerable, you want to talk to a sexual harassment lawyer in California. LegalMatch.com can quickly connect you to a lawyer who can review the facts of your case and advise you as to whether the harassment you are enduring may be the basis for a complaint.

Your lawyer can guide you through the process of complaining to your employer, state and federal agencies, and a lawsuit if you go that route. You are most likely to meet with success if you have an experienced lawyer on your side.