Counter-arguments for common harassment claim defenses under FEHA and Title VII
When employers respond to harassment claims, they typically raise predictable defenses. This guide provides legally-supported counter-arguments with citations to California FEHA law and federal Title VII precedent. Click each defense to see detailed response strategies.
Employers and harassers often characterize sexual or offensive comments as "just jokes," claiming no harm was intended and everyone should have a sense of humor.
"Whether [harasser] intended their comments as 'jokes' is legally irrelevant. California law applies an objective standard: would a reasonable person in my position find this conduct offensive? Repeated sexual comments, regardless of claimed humorous intent, created a hostile work environment as defined under Government Code section 12940(j). The pattern of conduct - not the claimed intent - determines liability."
Employers argue that because you didn't file a formal HR complaint, they had no opportunity to address the harassment and shouldn't be liable (Faragher/Ellerth affirmative defense).
In California, employers cannot escape liability for supervisor harassment by pointing to an unused complaint procedure. This is different from federal law. Make sure to emphasize California's strict liability standard.
"Under California FEHA, [Company] is strictly liable for harassment by supervisors regardless of whether I used the formal complaint procedure. Government Code section 12940(j)(1) provides no Faragher/Ellerth-style affirmative defense for supervisor harassment. [Alternatively/Additionally], I reasonably feared retaliation given [specific examples], making formal reporting impractical. The company was on constructive notice because [manager witnessed/common knowledge/etc.]."
Employers argue the alleged conduct was too minor or infrequent to constitute actionable harassment - that it didn't rise to the level of "severe or pervasive" required by law.
"The harassment was [severe/pervasive/both] under the totality of circumstances standard. [Describe pattern of incidents]. Under Hughes v. Pair, each incident need not be independently actionable - courts consider the cumulative effect. [If single incident]: This single incident was sufficiently severe because [physical contact/explicit demand/threat to job]. A reasonable person in my position - [relevant characteristics] - would find this environment hostile."
Employers claim that because you participated in banter, laughed at jokes, didn't object loudly, or had a prior relationship with the harasser, the conduct was "welcome."
Employers may try to use your social media, dress, or personal life against you. Evidence of "provocative" behavior outside work is generally irrelevant and inadmissible. Focus on documenting when you objected or tried to avoid the harasser.
"Any appearance of 'welcoming' this conduct resulted from the inherent power imbalance between [harasser's position] and my position as [your position]. Participation under duress or fear of career consequences is not genuine consent. I explicitly indicated the conduct was unwelcome when [describe objection]. The Supreme Court in Meritor recognized that apparent 'voluntariness' must be evaluated in context of workplace power dynamics."
Employer claims they conducted a proper investigation, found the harassment claims "unsubstantiated," and therefore took appropriate action.
"The investigation was inadequate because [specific deficiencies]. Key witnesses [names] were never interviewed. Evidence I provided, including [describe], was disregarded. The investigator [name] had a conflict of interest as [relationship to harasser/company]. An employer cannot escape liability by conducting a sham investigation designed to reach a predetermined conclusion. Despite the complaint, no corrective action was taken and the harassment continued."
Employer claims they took "appropriate corrective action" against the harasser, such as a warning, training, or minor discipline, and therefore fulfilled their legal duty.
"The corrective action taken was inadequate and not 'reasonably calculated to end the harassment.' A verbal warning for [describe serious harassment] fails to meet the proportionality requirement. Indeed, the harassment continued after this purported discipline, demonstrating its ineffectiveness. [Harasser] faced no meaningful consequences and remained in a position to continue the harassment. Prior complaints against [harasser] received similarly toothless responses, showing a pattern of inadequate enforcement."
Employer argues the harasser was equally abusive to everyone regardless of gender, race, or other protected characteristics - therefore it wasn't "because of" a protected characteristic.
"The 'equal opportunity harasser' defense fails because the harassment was sexual/gender-based in nature. Sexual comments, propositions, and conduct are inherently 'because of sex' regardless of whether the harasser directed them at multiple people. Under Oncale, the relevant question is whether the conduct would have occurred but for the victim's sex. [Additionally/Alternatively], the harassment was actually more severe toward [women/men/etc.] as shown by [evidence]."
Employer argues you're overreacting and that a reasonable person wouldn't find the conduct offensive - essentially blaming you for being bothered.
"A reasonable person in my position - as a [relevant characteristic] employee subjected to [describe conduct] - would find this environment hostile. This isn't about personal sensitivity; it's about applying the legal standard correctly. Other employees found the conduct offensive [cite witnesses]. The company's own harassment policy prohibits exactly this behavior, implicitly acknowledging it's objectively inappropriate. California Government Code section 12923(b) requires consideration of my perspective, not a decontextualized 'reasonable person.'"
Employer claims you waited too long to file your complaint with CRD/EEOC, and therefore your claim is time-barred.
"The limitations period has not expired. [Choose applicable argument]: (1) The continuing violation doctrine applies because harassment continued through [last date], bringing all related acts within the 3-year FEHA period. (2) The discovery rule tolls the deadline because I did not discover the actionable nature of the conduct until [date] when [explain]. (3) Equitable tolling applies because [employer's conduct that delayed filing]. My CRD complaint filed [date] is timely."
Employer claims you signed an arbitration agreement requiring you to pursue claims through private arbitration rather than court or agency proceedings.
The 2022 EFAA is a significant protection. For sexual assault or sexual harassment claims that arose after March 3, 2022, you can void any pre-dispute arbitration agreement. This is federal law that preempts contrary state law.
"The arbitration agreement is unenforceable for this sexual harassment claim under the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), 9 U.S.C. § 401-402. Under the EFAA, I elect to have this claim heard in court rather than arbitration. [Alternatively]: The arbitration agreement is unconscionable under California law because [procedural: no opportunity to negotiate, hidden in paperwork] [substantive: limits remedies, requires fee-splitting, etc.]."
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