📋 Overview: California Workplace Harassment
Workplace harassment occurs when unwelcome conduct based on a protected characteristic is so severe or pervasive that it creates a hostile, intimidating, or offensive work environment. Unlike discrimination (which focuses on adverse employment actions), harassment focuses on the abusive conduct itself.
Who This Guide Serves
I draft these demand letters for two distinct audiences:
For Employees (Senders)
You experienced harassment at work - sexual harassment, racial harassment, or other harassment based on a protected characteristic that made your workplace hostile or abusive.
For Employers (Recipients)
You received a harassment demand letter and need to understand your liability exposure, especially the difference between supervisor and coworker harassment.
Types of Workplace Harassment
Sexual Harassment
Unwelcome sexual advances, requests for sexual favors, sexually explicit comments or images, or physical conduct of a sexual nature
Quid Pro Quo
Job benefits (hiring, promotion, assignments) conditioned on submission to sexual demands or other unwelcome conduct
Hostile Work Environment
Severe or pervasive conduct based on protected characteristic that alters working conditions and creates abusive environment
Racial/Ethnic Harassment
Racial slurs, offensive jokes, stereotyping, display of racist symbols or materials
Age-Based Harassment
Repeated derogatory comments about age, "dinosaur" references, pressure to retire
Disability Harassment
Mockery of disability, offensive comments about medical conditions, interference with accommodations
Critical: Harassment vs. Discrimination
Harassment and discrimination are separate claims under FEHA. Discrimination requires an adverse employment action (termination, demotion). Harassment focuses on abusive conduct creating a hostile environment - no adverse action is required. I often assert both claims when facts support them.
The "Severe or Pervasive" Standard
To be actionable, harassment must be either:
Severe
A single incident of extreme conduct (physical assault, explicit threat, egregious slur) can be enough
Pervasive
A pattern of recurring conduct that, while individually less serious, collectively creates hostile environment
What You Can Recover
- Back pay - Lost wages if harassment led to job loss or resignation
- Front pay - Future lost earnings if reinstatement isn't feasible
- Emotional distress - Often substantial in harassment cases
- Punitive damages - To punish malicious or reckless conduct
- Attorney fees - Recoverable if you prevail
- Medical expenses - Therapy, counseling, treatment costs
⚖ Supervisor vs. Coworker Liability
California applies different liability standards depending on who committed the harassment. This distinction is crucial for both employees and employers.
Supervisor Harassment
Under FEHA, employers are strictly liable for harassment by supervisors. This means:
- Employer is automatically liable - no defense
- Does not matter if employer knew about harassment
- Does not matter if employer took corrective action
- Supervisor's conduct is imputed directly to employer
If a supervisor harassed you, employer liability is automatic.
Coworker Harassment
For harassment by coworkers (non-supervisors), employer liability requires showing:
- Employer knew or should have known about harassment
- Employer failed to take immediate corrective action
- Failure to take reasonable steps to prevent
I build coworker harassment cases by documenting employer knowledge and inadequate response.
Who is a "Supervisor"?
Under California law (following Vance v. Ball State University federal standard adopted by FEHA), a supervisor is someone with authority to:
- Hire, fire, demote, promote, or transfer the employee
- Take tangible employment actions
- Direct daily work activities (broader under California law)
California interprets "supervisor" more broadly than federal law. I analyze the harasser's actual authority over your employment.
💼 For Employers: Responding to Harassment Claims
If you've received a harassment demand letter, your liability exposure depends heavily on whether the alleged harasser was a supervisor. Quick, strategic action is essential.
Strict Liability Means No Defense
If the harasser was a supervisor, you are strictly liable. Period. There is no "Faragher-Ellerth" affirmative defense under California FEHA (unlike federal law). Your only options are (1) dispute that harassment occurred, (2) dispute the harasser was a supervisor, or (3) negotiate damages.
Immediate Steps for Employers
- Determine harasser's status - Was this person a supervisor under FEHA's broad definition?
- Preserve all evidence - Issue litigation hold immediately
- Review complaint history - Did employee report the harassment? When? How did you respond?
- Assess prior knowledge - Did anyone in management know or have reason to know?
- Evaluate your response - Did you investigate promptly? What corrective action was taken?
- Calculate exposure - Emotional distress damages in harassment cases are often substantial
For Coworker Harassment - Building Your Defense
Prompt Investigation
Document that you investigated immediately upon learning of the complaint
Appropriate Action
Show corrective action was proportional to the conduct (discipline, separation, training)
Prevention Efforts
Document anti-harassment policies, training, and complaint procedures
No Retaliation
Ensure complainant suffered no adverse treatment after reporting
⚖ Legal Basis: California FEHA Harassment Statutes
FEHA provides strong protections against workplace harassment with strict employer liability standards. These statutes form the foundation of your demand letter.
Primary California Statutes
Government Code Section 12940(j)(1) - Harassment Prohibition
Makes it an unlawful employment practice for an employer or any other person to harass an employee because of protected characteristics. Importantly, harassment claims can be brought against individuals (supervisors/coworkers), not just employers.
Government Code Section 12940(j)(3) - Employer Liability
Employers are strictly liable for harassment by agents or supervisors. For coworker harassment, employers are liable if they knew or should have known and failed to take immediate and appropriate corrective action. This is California's version of the respondeat superior doctrine for harassment.
Government Code Section 12940(k) - Failure to Prevent
Employers must take all reasonable steps necessary to prevent harassment from occurring. This includes maintaining anti-harassment policies, providing training, establishing complaint procedures, and promptly investigating complaints. Failure to prevent is a separate cause of action.
Government Code Section 12940(h) - Retaliation Protection
Prohibits retaliation against employees who report harassment, file complaints, or participate in investigations. Retaliation is actionable even if the underlying harassment claim is ultimately unsuccessful.
Government Code Section 12950.1 - Training Requirement
Employers with 5+ employees must provide sexual harassment prevention training to all employees. Supervisors require 2 hours; non-supervisory employees require 1 hour. Training must be provided within 6 months of hire and every 2 years thereafter.
Government Code Section 12965 - Administrative Prerequisite
Before filing a civil lawsuit, the employee must file a verified complaint with CRD within 3 years and obtain a Right to Sue letter. The lawsuit must be filed within 1 year of receiving the Right to Sue.
Key FEHA Definitions for Harassment Claims
"Harassment"
Unwelcome conduct based on protected characteristic that is severe or pervasive enough to alter working conditions and create hostile environment
"Severe"
Single incident of extreme conduct (assault, explicit threat, egregious slur) sufficient to create hostile environment
"Pervasive"
Pattern of recurring conduct that collectively creates hostile environment, even if individual acts are less serious
"Hostile Work Environment"
Environment that a reasonable person would find hostile, intimidating, or offensive, and that actually affected the employee
FEHA vs. Federal Title VII
Key differences favoring California employees:
- Employer size: FEHA covers employers with 5+ employees (Title VII requires 15+)
- Filing deadline: 3 years to file with CRD (vs. 180/300 days for EEOC)
- Damages: No cap on compensatory/punitive damages (federal has caps)
- Supervisor liability: No affirmative defense available under FEHA
📝 Elements of a FEHA Harassment Claim
To establish a harassment claim under FEHA, I prove each of these elements:
Prima Facie Elements
- Protected Characteristic - Harassment was based on race, sex, age, disability, religion, or other FEHA-protected class
- Unwelcome Conduct - The conduct was unwanted and offensive to the employee
- Severe or Pervasive - Conduct was either extremely severe (one bad incident) or recurring and pervasive
- Hostile Environment - Conduct altered working conditions and created abusive environment
- Employer Liability - Employer is liable based on harasser's status (strict for supervisors, negligence for coworkers)
The Totality of Circumstances Test
Courts evaluate whether harassment was "severe or pervasive" by examining:
Frequency
How often did the conduct occur? Daily harassment vs. isolated incidents
Severity
How serious was each incident? Physical touching vs. offensive comments
Physical vs. Verbal
Physical threats or touching are more serious than purely verbal harassment
Humiliating
Was the conduct publicly humiliating? Harassment in front of others is more severe
Work Interference
Did harassment unreasonably interfere with work performance?
Psychological Harm
What was the effect on the employee's mental health?
Examples of Severe vs. Pervasive
| Severe (Single Incident Enough) | Pervasive (Pattern Required) |
|---|---|
| Sexual assault or attempted assault | Daily offensive jokes about protected characteristic |
| Explicit threat of violence | Recurring display of offensive images |
| Use of extremely offensive slurs | Persistent unwelcome romantic overtures |
| Quid pro quo demand (job for sex) | Regular exclusion from meetings based on gender/race |
| Public physical humiliation | Continuous derogatory nicknames or comments |
Objective AND Subjective Test
California requires proving both:
- Subjective: YOU actually found the environment hostile/abusive
- Objective: A reasonable person in your position would find it hostile/abusive
The "reasonable person" is judged from the perspective of someone in the plaintiff's protected class (e.g., "reasonable woman" in sexual harassment cases).
💰 Damages and Penalties
Harassment cases often result in substantial damages, particularly for emotional distress. California has no cap on damages against private employers.
| Damage Type | Description | Typical Range |
|---|---|---|
| Emotional Distress | Mental anguish, humiliation, anxiety, depression, PTSD symptoms | $50,000 - $1,000,000+ |
| Back Pay | Lost wages if harassment led to constructive discharge or resignation | $20,000 - $300,000+ |
| Front Pay | Future lost earnings when reinstatement isn't feasible | 1-5 years wages |
| Medical Expenses | Therapy, counseling, medication, treatment costs | $5,000 - $50,000+ |
| Punitive Damages | To punish malicious, oppressive, or fraudulent conduct | Often 1-5x compensatory |
| Attorney Fees | Prevailing plaintiff recovers reasonable fees | $50,000 - $500,000+ |
📊 Sample Damages Calculation
Example: Severe Sexual Harassment by Supervisor - Constructive Discharge
My Fee Structure
I draft harassment demand letters at $240/hour or $450 flat fee for standard cases. This includes the demand letter, one round of revisions, and brief strategic consultation. Cases involving extensive documentation or multiple harassers may require additional time.
Emotional Distress is Often the Largest Component
In harassment cases, emotional distress damages often exceed lost wages. California juries have awarded six and seven-figure emotional distress damages in egregious cases. Document your psychological impact thoroughly: therapy records, medication, sleep problems, relationship impacts, daily functioning.
📂 Evidence Checklist
Gather these documents and evidence before sending your demand letter. Strong documentation dramatically increases settlement value in harassment cases.
📄 Employment Documents
- ✓ Offer letter, employment contract, job description
- ✓ Employee handbook and anti-harassment policy
- ✓ Performance reviews showing competent performance
- ✓ Organizational chart showing harasser's position
📩 Harassment Documentation
- ✓ Written log of each incident (date, time, location, witnesses, exact words/conduct)
- ✓ Emails, texts, voicemails from harasser
- ✓ Photos of offensive materials, workspace decorations
- ✓ Names and contact info for witnesses
📣 Complaints and Reports
- ✓ Written HR complaints and employer responses
- ✓ Investigation reports and findings
- ✓ Evidence of what corrective action was (or wasn't) taken
- ✓ CRD/DFEH or EEOC complaint (if filed)
💊 Damages Evidence
- ✓ Therapy/counseling records and invoices
- ✓ Prescriptions for anxiety, depression, sleep medication
- ✓ Personal journal documenting emotional impact
- ✓ Statements from family/friends about changes in behavior
Preserve Evidence Immediately
Forward work emails to personal email before losing access. Screenshot text messages. Keep originals of everything in a safe location outside work. If you believe employer may destroy evidence, consider sending a litigation hold letter immediately.
Contemporaneous Documentation is Gold
The best evidence is what you documented at the time it happened. Emails you sent to yourself, text messages to friends, or journal entries dated near the incidents are far more powerful than reconstructed timelines. Start documenting NOW if you haven't already.
📝 Sample Language
Copy and customize these paragraphs for your harassment demand letter.
🚀 Next Steps
After sending your demand letter, follow this process.
Expected Timeline
Days 1-7
Employer receives and forwards to legal counsel for review
Days 7-21
Internal investigation, exposure assessment, response preparation
Days 21-30
Response with settlement offer, counteroffer, or denial
CRD Filing Process
-
File Complaint with CRD
File online at calcivilrights.ca.gov within 3 years of the last harassing act. You can request an immediate Right to Sue letter or allow CRD to investigate.
-
Receive Right to Sue Letter
If you request immediate Right to Sue, CRD issues it promptly. This satisfies the administrative prerequisite for filing suit.
-
File Lawsuit Within 1 Year
You must file your civil lawsuit in Superior Court within 1 year of receiving the Right to Sue letter.
Critical: 3-Year Filing Deadline
You must file with CRD within 3 years of the last harassing act. For continuing harassment, the deadline runs from the most recent incident. Do not miss this deadline - it is an absolute bar to your FEHA claim.
If Settlement Fails
-
Consult an Employment Attorney
Many employment attorneys handle harassment cases on contingency. FEHA fee-shifting makes these cases attractive. Look for attorneys with harassment trial experience.
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File CRD Complaint
If not already filed, file immediately to preserve rights and obtain Right to Sue letter.
-
Consider Mediation
Many harassment cases settle during early mediation. CRD offers free mediation services.
-
Litigation
If necessary, file in Superior Court. Discovery often reveals additional evidence supporting your claims.
Ready to Move Forward?
I draft professional harassment demand letters that maximize settlement value. Get started with a consultation to evaluate your case.
California Resources
- Civil Rights Department (CRD): calcivilrights.ca.gov - File complaints, free mediation
- CRD Hotline: 1-800-884-1684 (voice) / 1-800-700-2320 (TTY)
- EEOC: eeoc.gov - Federal dual-filing option
- State Bar Lawyer Referral: calbar.ca.gov
- Legal Aid at Work: legalaidatwork.org - Consultations