This page details the workplace laws California has prohibiting sexual harassment. The point of this page is to help non-lawyers determine how the law protects sexual harassment victims. If you read this page and believe that you have been terminated for complaining about sexual harassment, you should contact an employment lawyer for a free consultation.

This sexual harassment video was made by an attorney Mr. Odell went to law school with. It gives a great educational overview of the law.

This page covers the following topics:

Sexual Harassment Basics

California law says that it is illegal to harass someone at work due to their sex. California Government Code § 12940(j). Sexual harassment is the most prevalent type of harassment. In a survey conducted in 2015, one in three women had been harassed at work. Though this survey focuses solely on women, sexual harassment is not a one-way street. Women can harass men, and same gender harassment is protected by law.

Though sexual harassment is generally described in two forms, quid pro quo and hostile work environment, the California Supreme Court does not see any distinction between the two. Furthermore, it has been defined by the California Fair Employment and Housing Act (“FEHA”) to view harassment as “conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, . . . or for other personal motives.[1] Also, one incident of harassment may be enough to trigger legal grounds for a sexual harassment claim, so long as it is severe enough.

Hostile Work Environment

Hostile work environment claims may include both verbal and physical conduct, and the victim need not be the intended target (“third-party sexual harassment”). For instance, if two males are making lewd comments in an email about a female coworker and one of them accidentally sends it to her (or even another different female!), the unintended recipient may have a claim for sexual harassment.

To the same extent, FEHA states that sexual harassment does not have to stem from sexual desire.[2] This means that a male using sexually derogatory terms on another male or female as an insult may be liable for sexual harassment.

Quid Pro Quo

Generally, Quid pro quo (translated “something for something”) sexual harassment is when a supervisor’s request sexual favors in exchange for job benefits including compensation, promotions, or receiving good annual reviews. When a supervisor uses their authority to pressure an employee into sexual favors the legal consequences may be severe. Even if the employee submits voluntary to such coercion, the jury may decide that the sexual relationship was due to the employee fearing for the loss of job benefits or their employment altogether.

Sexual Favoritism

Though romantic relationships among coworkers are not in and of themselves illegal, they can lead to a sexual harassment claim via hostile work environment. In Miller v. Department of Corrections, the warden of a California prison had romantic relationships with several employees which, in turn, lead to widespread favoritism. This favoritism lead to a hostile work environment as those employees not involved with the warden were not receiving the benefits of those who were. So, if your supervisor is having a romantic relationship with another employee, and is not directly accosting you, you may still be suffering from the effects of sexual harassment.

Employer’s Duty to Prevent Harassment

CA’s sexual harassment laws require employers to take all reasonable steps necessary to keep sexual harassment from occurring.[3] Some specific steps that must be taken include displaying a poster on the illegality of sexual harassment on the job and distributing an information sheet on sexual harassment to all employees.[4] California employers with over fifty employees are further required to provide supervisory employees with two hours of sexual harassment training every two years.

If the employer receives a complaint about a harassing employee, the employer should immediately separate the two employees and conduct a unbiased investigation. However, doing these things alone does not completely safeguard the employer from liability. If a jury decides that the employer failed to take all reasonable steps necessary to prevent sexual harassment, the employee may be entitled to recover damages.

Personal Liability

The California legislature has taken a strong stand against sexual harassment by adding a layer of liability not found in discrimination cases. An employee, whether a supervisor or a coworker, who harasses another employee can be held individually liable even if the company is not held liable. Specifically, it states that “[a]n employee . . . is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer . . . knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”[5]

What Can You Recover in a Sexual Harassment Lawsuit?

Generally, there are four types of damages that may be awarded from a sexual harassment lawsuit: lost compensation, emotional distress, punitive damages, and attorney’s fees.

Lost compensation may be awarded if your employment is terminated due to you complaining about sexual harassment. The amount is determined by looking at your salary and seeing how much was lost due to the termination. Therefore, if you were making $55,000 per year and was unable to find another job for a year, you would be awarded $55,000.

Emotional distress compensation (also known as “pain and suffering”) can include compensation for stress, depression, insomnia, fear, or mental anguish suffered due to the harassment. The victim in a sexual harassment case may suffer anxiety attacks, loss of appetite and weight, insomnia, loss of libido, and depression before, during, and after the complaint is made. Because of this, the law allows for both past and future emotional distress damages.

Punitive damages are extremely rare, but can be awarded if your attorney shows that the employer was participating in truly deplorable conduct. This type of damage is meant to punish the corporation in the trial and send a message to other corporations that the justice system won’t stand for that kind of conduct. To win these, generally, it must be shown that the company acted with malice, oppression, or fraud. This is very difficult to do.

Finally, you may be able to receive attorney’s fees on top of your lost wages and emotional distress.

Average Verdicts and Settlements in Sexual Harassment Cases

Unfortunately, due to settlements being mostly confidential there is not much, if any, data to calculate an average from and most cases settle. From our experience, most cases settle for under $50,000. All the same, you should not set an expectation to settle for a specific amount from your lawsuit. Every case is very different.

Verdicts, on the other hand, tend to make it into your news sources when they are extremely large sums. Furthermore, these sums are due to different variables including jurisdictional differences, jury pool make up, and various legal standards. Thus, they should be taken with more than just a grain of salt. According to one Berkeley study, women in sexual harassment cases win sexual harassment trials 68% of the time, with a median verdict of $210,000. But this data is 20+ years old. With this said, you should never expect to win a certain amount from a lawsuit. Every case is very different and each has thousands of variables.

The Statute of Limitations

The time limit, or “statute of limitations,” that you have in order to file your case is one year after you acquire a right-to-sue letter from the Department of Fair Employment & Housing (“DFEH”). You have one year from the last unlawful action to acquire that right-to-sue letter. Normally, you can, and probably want, your attorney to acquire this letter for you. However, if you are having issues getting a lawyer or are running out of time, you can get the right-to-sue letter yourself from the DFEH yourself to put another year on the clock.

If you work for a public entity, the statute of limitations may be much shorter! Be sure to contact an attorney as soon as possible to examine this issue. It is critically important.

The Cost of a Lawyer

Most employment lawyers in California are only paid if they win your case. This is called a “contingency fee.”  The lawyer is paid a percentage of the recovery. This fee structure enables you to pursue your claim without having to worry about paying your lawyer a lot of money out of pocket. If you don’t recover anything, your lawyer doesn’t get paid. It’s a simple as that. Additionally, the lawyers will usually cover the costs of the trial and recover these expenses from the settlement or verdict.

Free Consultations with a Harassment Lawyer

A majority of employment lawyers offer free consultations so that you don’t have to worry about paying for their time. After your termination, you should contact a lawyer as soon as possible for one of these consultations as waiting can have detrimental effects on your case. Our office offers free consultations to everyone and there is no obligation when you call.

[1] Reno v. Baird (1998) 18 C4th630, 645, 76 CR2d 499, 502

[2] CA Government Code § 12940(j)(4)(c)

[3] CA Government Code § 12940(k)

[4] CA Government Code § 12950(b)

[5] CA Government Code § 12940(j)(3)