California Harassment Allegation Response Guide

For Employers | Investigate Claims | Assert Defenses | Protect Your Business

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Understanding Harassment Claims Under California Law

You Have Received a Harassment Complaint: If you have received a harassment complaint or demand letter, an employee or former employee is alleging that unlawful harassment occurred in your workplace. This is a serious legal matter requiring immediate, careful attention. How you respond now will significantly impact your legal exposure. Do not ignore this complaint or retaliate against anyone involved.

California Fair Employment and Housing Act (FEHA)

California Government Code Section 12940(j) makes it unlawful for employers to harass employees based on protected characteristics. California's protections are broader than federal law, covering employers with 5 or more employees (compared to Title VII's 15-employee threshold).

Protected Characteristic	Examples
Race, Color, National Origin, Ancestry	Racial slurs, ethnic jokes, derogatory comments about heritage
Sex, Gender, Gender Identity, Gender Expression	Sexual comments, gender-based insults, misgendering
Sexual Orientation	Homophobic slurs, harassment based on sexual orientation
Religion, Religious Creed	Religious mockery, forcing participation in religious activities
Age (40+)	Age-based jokes, comments about retirement, "old timer" remarks
Disability (Physical or Mental)	Mocking disabilities, denying accommodations, disability-based jokes
Marital Status, Pregnancy, Medical Condition	Comments about pregnancy, marital status discrimination
Military/Veteran Status, Genetic Information	Harassment based on military service or genetic conditions

Types of Sexual Harassment

Sexual harassment claims generally fall into two categories:

Type	Definition	Examples
Quid Pro Quo	Employment benefits are conditioned on submission to unwelcome sexual conduct, OR adverse action is taken for refusing such conduct	Supervisor offers promotion for sexual favors; employee is demoted after rejecting advances; hiring conditioned on dating relationship
Hostile Work Environment	Unwelcome conduct based on sex that is sufficiently severe or pervasive to alter working conditions and create an abusive environment	Persistent sexual jokes, displaying pornography, unwanted touching, sexual comments about appearance, repeated requests for dates after rejection

Non-Sexual Harassment: Harassment need not be sexual in nature. Any harassment based on a protected characteristic (race, religion, disability, age, etc.) can create liability under FEHA. The same "severe or pervasive" standard applies to all types of harassment.

The "Severe or Pervasive" Standard

For hostile work environment claims, the conduct must be "severe or pervasive" - not both. California courts analyze:

Frequency: How often did the conduct occur? Isolated incidents may not be actionable unless extremely severe
Severity: How offensive was the conduct? Physical touching is more severe than verbal comments
Physically Threatening or Humiliating: Was the conduct threatening or merely offensive?
Unreasonable Interference: Did the conduct unreasonably interfere with work performance?
Totality of Circumstances: Courts look at the complete picture, not isolated incidents

California's Lower Threshold: California law is more protective than federal law. Under FEHA, conduct need only be "severe or pervasive" from the perspective of a reasonable person in the plaintiff's position. A single severe incident (such as a physical assault or explicit quid pro quo demand) can establish harassment.

Supervisor vs. Co-Worker Harassment: Different Liability Standards

Harasser	Employer Liability Standard	Defense Available?
Supervisor/Manager	Strict liability under FEHA - employer is automatically liable for supervisor harassment regardless of whether employer knew or should have known	Faragher-Ellerth defense may limit damages in some circumstances
Co-Worker	Negligence standard - employer is liable only if it knew or should have known of the harassment and failed to take immediate, appropriate corrective action	Prompt remedial action defense available
Third Party (Customer, Vendor)	Similar to co-worker standard - employer must take reasonable steps to prevent and correct third-party harassment	Prompt remedial action defense available

AB 9 - Extended Statute of Limitations

Effective January 1, 2020, AB 9 extended the deadline for filing DFEH (now CRD) harassment complaints:

Current Filing Deadline: Employees now have 3 years from the date of the alleged harassment to file a complaint with the California Civil Rights Department (CRD, formerly DFEH). This is up from 1 year under prior law. Claims arising before January 1, 2020 are subject to the 1-year deadline.

SB 1343 - Mandatory Training Requirements

California requires harassment prevention training for employers with 5 or more employees:

Supervisory Employees: 2 hours of interactive harassment prevention training within 6 months of assuming supervisory role, then every 2 years
Non-Supervisory Employees: 1 hour of harassment prevention training within 6 months of hire or promotion, then every 2 years
Seasonal/Temporary Employees: Must be trained within 30 calendar days of hire or within 100 hours worked, whichever comes first
Training Content: Must include information on harassment based on gender identity, gender expression, and sexual orientation

Training as Defense Evidence: Documentation of completed harassment prevention training can support your defense by showing you took reasonable steps to prevent harassment. Conversely, failure to provide required training can be used as evidence of negligence.

Evaluating Your Position: Assessing the Complaint

Immediate Assessment Required: Upon receiving a harassment complaint or demand letter, you must promptly evaluate the allegations and your company's exposure. Your initial response and investigation will be critical to your defense if litigation follows.

Step 1: Understand Your Investigation Obligations

California employers have a legal duty to investigate harassment complaints. Under FEHA and case law, you must:

Act Promptly: Begin investigation immediately upon receiving a complaint - delays can establish liability
Investigate Thoroughly: Interview the complainant, accused, and witnesses; review documents and evidence
Maintain Confidentiality: Keep the investigation as confidential as possible while conducting a complete inquiry
Document Everything: Create written records of all investigation steps, interviews, findings, and actions taken
Take Appropriate Action: If harassment is substantiated, implement remedial measures proportionate to the offense
Prevent Retaliation: Ensure the complainant and witnesses are protected from any adverse action

Failure to Investigate: Failing to investigate a harassment complaint, or conducting an inadequate investigation, can establish employer liability even if the underlying harassment claim has weaknesses. Courts view investigation failure as evidence of ratification or negligence.

Step 2: Review Complaint History

Before responding, gather information about the complaint and any prior issues:

Information to Gather	Why It Matters
Prior complaints by this employee	Pattern may suggest credibility issues or ongoing legitimate concerns that were not addressed
Prior complaints against the accused	Pattern of similar complaints significantly increases liability exposure
Previous investigations involving either party	Shows what employer knew and what steps were previously taken
HR files and personnel records	May contain relevant performance issues, prior warnings, or documented behavior
Training records	Documentation that harassment training was provided to both parties
Anti-harassment policies distributed	Evidence that clear policies were communicated to employees

Step 3: Assess the Alleged Conduct

Evaluate the specific allegations in the complaint:

Nature of Conduct: Was it verbal, physical, visual (pictures/videos), or a combination? Physical conduct is viewed more seriously.
Frequency: Was this a single incident or ongoing pattern? Pervasive conduct over time increases severity.
Severity: How offensive was the conduct? Would a reasonable person find it hostile or abusive?
Protected Characteristic: Was the conduct based on sex, race, religion, or another protected class?
Context: Where and when did incidents occur? During work hours, at company events, or after hours?
Evidence: What evidence exists? Witnesses, emails, texts, recordings, or documentation?

Quid Pro Quo Analysis: If the complaint alleges quid pro quo harassment (conditioning employment benefits on sexual favors), determine: (1) Did the accused have authority over the complainant's employment? (2) Was there a tangible employment action (hire, fire, promotion, demotion)? (3) Was the action linked to acceptance or rejection of sexual conduct? Even a single instance of quid pro quo harassment can establish liability.

Step 4: Evaluate Supervisor vs. Co-Worker Liability

Supervisor Harassment (Strict Liability):
If the accused is a supervisor, your liability exposure is significant. Under California law, employers are strictly liable for harassment by supervisors - no showing of employer negligence is required. A "supervisor" includes anyone with authority to:

Hire, fire, promote, demote, or discipline the complainant
Meaningfully direct the complainant's daily work activities
Effectively recommend such actions

Co-Worker Harassment (Negligence Standard):
If the accused is a co-worker (not a supervisor), your liability depends on whether you:

Knew or should have known about the harassment
Failed to take immediate, appropriate corrective action

If you promptly investigated and took reasonable remedial action, you may have a complete defense to co-worker harassment claims.

Step 5: Evaluate Prior Remedial Measures

If any corrective action was previously taken, assess its effectiveness:

Were prior complaints addressed promptly and thoroughly?
Was discipline imposed proportionate to the offense?
Were remedial measures effective in stopping the harassment?
Did harassment recur after remedial measures?
Were complainants protected from retaliation?

Key Questions for Your Defense Assessment

Question	If Yes	If No
Did harassment actually occur?	Focus on remedial action defense	Document evidence supporting denial
Is the accused a supervisor?	Strict liability applies - focus on limiting damages	Negligence defense available if prompt action taken
Did you have prior notice?	Your response to notice is critical	Lack of notice may support defense
Did complainant use internal complaint procedure?	Your response to complaint matters	May support Faragher-Ellerth defense
Did you take prompt remedial action?	Strong defense to co-worker claims	Significant liability exposure
Is there documentation of anti-harassment policies and training?	Supports reasonable care defense	Increases liability exposure

Response Strategies: How to Handle Harassment Allegations

Strategic Response Required: Your response to a harassment complaint must balance legal defense considerations with your legal obligation to investigate and prevent harassment. A defensive posture that ignores investigation obligations will increase liability.

Strategy 1: Conduct a Prompt, Thorough Investigation

Investigation is Mandatory: Regardless of whether you believe the complaint has merit, you must conduct a good-faith investigation. Failure to investigate is itself evidence of negligence or ratification of harassment.

Investigation Best Practices:

Begin Immediately: Start the investigation within 24-48 hours of receiving the complaint. Delays are indefensible.
Select an Appropriate Investigator: Use a neutral party (HR professional, outside investigator, or attorney) with no stake in the outcome. Avoid having a friend or close colleague of the accused conduct the investigation.
Interview the Complainant First: Get detailed information about what happened, when, where, who witnessed it, and what evidence exists.
Interview Witnesses: Speak with anyone who may have relevant information. Document each interview.
Interview the Accused: Give the accused a fair opportunity to respond to specific allegations. Do not reveal witness identities if possible.
Gather Documents: Collect emails, texts, photos, videos, personnel files, prior complaints, and training records.
Assess Credibility: Evaluate conflicting accounts based on corroboration, motive, consistency, and demeanor.
Make Findings: Determine whether harassment occurred based on preponderance of evidence.
Document Everything: Create a written investigation report summarizing the process, evidence, and conclusions.

Strategy 2: Implement the Faragher-Ellerth Defense

The Faragher-Ellerth defense (from two U.S. Supreme Court cases) can limit liability for supervisor harassment when no tangible employment action was taken:

Faragher-Ellerth Defense Elements:

Employer exercised reasonable care to prevent and promptly correct harassing behavior (anti-harassment policy, training, complaint procedures)
Employee unreasonably failed to take advantage of preventive or corrective opportunities provided (did not use complaint procedure)

Important: This defense is NOT available if the supervisor's harassment resulted in a tangible employment action (termination, demotion, pay cut).

Building the Defense:

Document that you had a clear anti-harassment policy distributed to all employees
Show that complaint procedures were accessible and well-publicized
Prove that harassment prevention training was provided (SB 1343 compliance)
Demonstrate that the complainant knew about the complaint procedure but did not use it, or delayed unreasonably
Evidence that when complaints were made, prompt corrective action followed

Strategy 3: Document Remedial Measures

If harassment is substantiated, or even if findings are inconclusive, document all remedial measures taken:

Remedial Measure	When Appropriate	Documentation Needed
Verbal Warning	Minor first offense; conduct was inappropriate but not severe	Written memo to file documenting the warning given
Written Warning	More serious conduct or repeat offense; needs documentation	Signed acknowledgment from accused; copy in personnel file
Required Training	Conduct suggests lack of awareness; remedial education appropriate	Training completion certificates; content of training
Transfer/Reassignment	Separation needed; complainant should not be adversely affected	Documentation that transfer does not disadvantage complainant
Suspension	Serious conduct warranting removal from workplace	Written suspension notice; length and conditions
Termination	Severe harassment; repeat offense; or pattern of misconduct	Termination letter; documentation supporting decision

Proportionality Matters: Remedial action must be proportionate to the offense. Under-response (verbal warning for severe harassment) suggests the employer does not take harassment seriously. Over-response without evidence can expose the employer to claims by the accused.

Strategy 4: Preserve Evidence

Immediately take steps to preserve all relevant evidence:

Litigation Hold: Issue a formal litigation hold notice to prevent destruction of relevant documents
Electronic Evidence: Preserve emails, texts, chat logs, social media posts, surveillance footage
Personnel Files: Secure files for complainant, accused, and witnesses
Training Records: Document completion of harassment training by all parties
Prior Complaints: Preserve records of any prior complaints by or against either party
Investigation Materials: Retain all interview notes, investigation report, and supporting documents

Strategy 5: Communicate Appropriately

How you communicate with the complainant affects both the legal outcome and the perception of your response:

Acknowledge Receipt: Promptly acknowledge the complaint in writing
Express Commitment: State your commitment to a fair, thorough investigation
No Retaliation: Explicitly state that retaliation will not be tolerated
Provide Timeline: Give a reasonable timeline for investigation completion
Follow Up: Communicate the outcome and actions taken (without unnecessary detail about discipline)
Avoid Defensiveness: Do not dismiss or minimize the complaint in communications

Avoid Retaliation: Any adverse action against the complainant during or after the complaint process will be scrutinized as potential retaliation. This includes termination, demotion, reassignment to less desirable duties, exclusion from meetings, or hostile treatment by supervisors.

Sample Response Letters

Customize These Templates: These sample letters provide a starting point for responding to harassment complaints. Modify them to fit your specific situation and ensure all statements are accurate. Consider having an attorney review your response before sending, especially for serious allegations or demand letters from attorneys.

Sample 1: Acknowledgment with Investigation Commitment

[COMPANY LETTERHEAD] [Date] CONFIDENTIAL [Employee Name] [Address or Internal Delivery] RE: Acknowledgment of Harassment Complaint Dear [Employee Name]: This letter acknowledges receipt of your complaint dated [Date] regarding alleged harassment in the workplace. We take all complaints of harassment extremely seriously and are committed to maintaining a workplace free from unlawful harassment as required by the California Fair Employment and Housing Act (FEHA). INVESTIGATION COMMITMENT We are initiating a prompt, thorough, and impartial investigation of your complaint. [Investigator Name/Title] will conduct this investigation. You may be contacted to provide additional information and to identify potential witnesses. INVESTIGATION PROCESS The investigation will include: - A detailed interview with you to understand the specifics of your complaint - Interviews with the individual(s) accused of harassment - Interviews with any witnesses you identify or who may have relevant information - Review of any documents, communications, or other evidence relevant to your complaint - Assessment of the evidence and a determination based on the facts gathered We expect to complete the investigation within [15-30] business days, though this timeline may be extended if additional time is needed to conduct a thorough inquiry. We will keep you informed of our progress. CONFIDENTIALITY This matter will be kept as confidential as possible while conducting a complete investigation. We ask that you also maintain confidentiality regarding this complaint and investigation. NON-RETALIATION [Company Name] strictly prohibits retaliation against any employee who makes a good-faith complaint of harassment or participates in an investigation. If you experience any conduct that you believe constitutes retaliation, please report it immediately to [HR Contact] at [contact information]. INTERIM MEASURES [If applicable: During the investigation, we have implemented the following interim measures to address your concerns: (describe any separation of parties, schedule changes, or other protective measures)] If you have any questions about the investigation process or wish to provide additional information, please contact [HR Contact Name] at [phone/email]. We appreciate your bringing this matter to our attention and are committed to addressing your concerns. Sincerely, [Name] [Title] [Company Name] cc: [HR File]

Sample 2: Response After Investigation Findings

[COMPANY LETTERHEAD] [Date] CONFIDENTIAL [Employee Name] [Address or Internal Delivery] RE: Conclusion of Harassment Investigation Dear [Employee Name]: This letter provides the results of our investigation into your harassment complaint dated [Date]. INVESTIGATION SUMMARY Our investigation included: - Interview with you on [Date(s)] - Interview with [Accused Name] on [Date] - Interviews with [number] witnesses - Review of relevant documents, including [emails, text messages, personnel files, etc.] - Review of applicable company policies and procedures The investigation was conducted by [Investigator Name/Title], and was completed on [Date]. FINDINGS [OPTION A - HARASSMENT SUBSTANTIATED] Based on our investigation, we have determined that conduct in violation of our anti-harassment policy occurred. The conduct you described constituted harassment based on [protected characteristic] under the California Fair Employment and Housing Act. REMEDIAL ACTION TAKEN We have taken appropriate corrective action to address this matter and prevent future occurrences. Due to privacy considerations, we are unable to disclose the specific disciplinary action taken against [Accused Name]. However, we want to assure you that the action taken is proportionate to the findings and is designed to stop the harassment and prevent recurrence. [OPTION B - HARASSMENT NOT SUBSTANTIATED] Based on our investigation, we were unable to substantiate that conduct in violation of our anti-harassment policy occurred. This finding does not mean your complaint was not made in good faith or that the events you described did not occur. Rather, based on the evidence available, we could not determine by a preponderance of the evidence that the conduct met the legal definition of harassment. Regardless of this finding, we have taken the following steps: - Reminded [Accused Name] of our anti-harassment policies and expectations - Provided additional training on appropriate workplace conduct - [Other remedial measures taken] [OPTION C - INCONCLUSIVE FINDINGS] Our investigation did not produce sufficient evidence to conclusively determine whether the alleged conduct occurred. In situations involving conflicting accounts without corroborating evidence, we are unable to make a definitive finding. Despite the inconclusive finding, we have taken the following preventive measures: - [List measures taken] CONTINUED PROTECTION Regardless of the investigation outcome, our commitment to a harassment-free workplace continues. If you experience any further conduct you believe constitutes harassment, or if you believe you have experienced retaliation for making this complaint, please report it immediately to [HR Contact]. We remain committed to maintaining a respectful workplace for all employees. Thank you for bringing your concerns to our attention. Sincerely, [Name] [Title] [Company Name] cc: [HR File]

Sample 3: Defense of Remedial Measures Taken (Response to Demand Letter)

[COMPANY LETTERHEAD] [Date] VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED [and via email to: attorney@email.com] [Attorney Name] [Law Firm Name] [Address] [City, State ZIP] RE: Response to Demand Letter on Behalf of [Former Employee Name] Our Client: [Company Name] Dear [Attorney Name]: We are in receipt of your demand letter dated [Date] on behalf of [Employee/Former Employee Name], alleging harassment in violation of the California Fair Employment and Housing Act. We have reviewed the allegations carefully and respond as follows. FACTUAL BACKGROUND [Company Name] has maintained and enforced a comprehensive anti-harassment policy throughout the relevant time period. This policy, which was distributed to all employees including [Employee Name], prohibited harassment based on all protected characteristics and established a clear complaint procedure. [Company Name] also provided harassment prevention training to all employees as required by California Government Code Section 12950.1 (SB 1343). RESPONSE TO ALLEGATIONS Your client's allegations do not support a claim for harassment under FEHA for the following reasons: 1. PROMPT INVESTIGATION AND REMEDIAL ACTION Upon receiving [Employee Name]'s complaint on [Date], [Company Name] immediately initiated a thorough investigation conducted by [Investigator - e.g., "an independent third-party investigator" or "our Human Resources Director"]. The investigation was completed within [number] days and included interviews with [Employee Name], the accused individual(s), and [number] witnesses. Based on the investigation findings, [Company Name] took prompt and appropriate corrective action, including [describe actions without revealing confidential disciplinary details - e.g., "disciplinary measures against the individual identified in the complaint" / "additional training and monitoring" / "separation of the parties"]. 2. FARAGHER-ELLERTH DEFENSE [If applicable] Your client did not utilize the complaint procedure made available to all employees until [date/event], despite the fact that the anti-harassment policy and complaint procedure were distributed at hire and posted in the workplace. [Company Name] exercised reasonable care to prevent and promptly correct harassing behavior by maintaining clear policies, providing required training, and promptly investigating and addressing the complaint once received. 3. CONDUCT DID NOT MEET LEGAL STANDARD [If applicable] The conduct described in your letter, even accepting your client's characterization, does not rise to the level of "severe or pervasive" harassment required under FEHA. [Provide specific reasons - e.g., "isolated comments" / "conduct not based on protected characteristic" / "conduct was not unwelcome as evidenced by [specific facts]"]. 4. NO TANGIBLE EMPLOYMENT ACTION [If applicable] Your client suffered no tangible adverse employment action as a result of the alleged conduct. [If employee resigned: Your client voluntarily resigned on [Date]; their resignation was not constructively compelled by intolerable conditions.] [If employee was terminated: Your client's termination on [Date] was based on [legitimate business reason], documented prior to any complaint, and was wholly unrelated to any protected activity.] DOCUMENTATION IN OUR POSSESSION Our records reflect the following, which we will produce in any litigation: - Anti-harassment policy distributed to [Employee Name] on [Date] - Harassment prevention training completed by [Employee Name] on [Date] - Harassment prevention training completed by [Accused] on [Date] - Investigation report dated [Date] - Documentation of remedial measures taken - [Other relevant documentation] RESPONSE TO DEMAND Based on the foregoing, we respectfully decline your demand for [damages/settlement amount]. [Company Name] acted in full compliance with its legal obligations under FEHA by maintaining appropriate policies, providing required training, promptly investigating the complaint, and taking immediate corrective action. We are prepared to vigorously defend against any claim your client may file. Should litigation ensue, we will assert all available defenses and seek recovery of costs and attorney's fees as permitted by law. If you wish to discuss this matter further, please contact the undersigned. Very truly yours, [Name] [Title/General Counsel/Outside Counsel] [Company Name / Law Firm] [Phone] [Email] cc: [Company HR/Legal File] This letter is a confidential settlement communication protected under California Evidence Code Section 1152 and Federal Rule of Evidence 408.

Legal Defenses to Harassment Claims

Multiple Defenses Available: Depending on the facts, employers may have several defenses to harassment claims under California law. The applicability of each defense depends on the specific allegations, the relationship between the harasser and employer, and the employer's actions before and after learning of the harassment.

1. Faragher-Ellerth Affirmative Defense

This defense, derived from U.S. Supreme Court cases Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, can provide a complete defense to supervisor harassment claims when no tangible employment action occurred:

Two-Prong Test:

Reasonable Care Prong: The employer exercised reasonable care to prevent and promptly correct harassing behavior. Evidence includes:
- Written anti-harassment policy distributed to employees
- Multiple channels for reporting complaints
- Harassment prevention training (SB 1343 compliance)
- Prompt investigation of complaints received
- Appropriate corrective action when harassment found
Unreasonable Failure Prong: The employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer. Evidence includes:
- Employee knew of complaint procedure but did not use it
- Employee delayed reporting without justification
- Employee failed to cooperate with investigation

Critical Limitation: The Faragher-Ellerth defense is NOT available if the supervisor's harassment resulted in a "tangible employment action" - a significant change in employment status such as hiring, firing, demotion, promotion denial, undesirable reassignment, or significant change in benefits. In those cases, employer liability is automatic.

2. Prompt Remedial Action Defense

For co-worker harassment (where strict liability does not apply), employers can defeat liability by showing they took prompt and appropriate corrective action:

Promptness: Action was taken immediately upon learning of the harassment - not weeks or months later
Appropriateness: The remedy was reasonably calculated to stop the harassment and prevent recurrence
Proportionality: The discipline was proportionate to the severity of the conduct
Effectiveness: The action actually stopped the harassment

What Qualifies as "Prompt": Courts generally expect action within days, not weeks. Beginning an investigation the same day or next business day after receiving a complaint demonstrates promptness. Delays of more than a few days require explanation.

3. Failure to Use Complaint Procedure

If the employee failed to report the harassment through available channels, this can support the Faragher-Ellerth defense and demonstrate the employer lacked notice:

Employee was aware of the complaint procedure (documented policy distribution)
Multiple reporting channels were available (HR, management, hotline)
Employee did not report until after resignation or termination
Employee's delay in reporting was unreasonable under the circumstances

Exceptions: Courts may excuse failure to report if the employee had reasonable fear of retaliation, if the complaint procedure was inadequate, if the harasser was the person designated to receive complaints, or if the employer's past handling of complaints discouraged reporting.

4. Conduct Not "Severe or Pervasive"

For hostile work environment claims, the plaintiff must prove the conduct was "severe or pervasive" enough to alter working conditions. Employers can defend by showing:

Factor	Defense Argument
Isolated Incidents	A few stray comments or isolated incidents, unless extremely severe, do not create a hostile environment
Mere Offensiveness	Conduct that is merely offensive, annoying, or unprofessional does not rise to actionable harassment
No Interference with Work	Conduct did not actually interfere with employee's work performance
Reasonable Person Standard	A reasonable person in plaintiff's position would not find the environment hostile or abusive
Not Based on Protected Characteristic	Conduct was equal-opportunity rudeness or general incivility, not targeted at a protected class

California's Lower Threshold: Be cautious with this defense in California. FEHA is interpreted more broadly than federal law, and California courts have found harassment based on conduct that federal courts might not consider actionable. A single severe incident (such as a physical assault or explicit quid pro quo proposition) can establish liability.

5. Welcome Conduct Defense

By definition, harassment must be "unwelcome." If the conduct was welcomed or participated in by the complainant, it may not constitute harassment:

Mutual Participation: Both parties engaged in similar conduct (mutual joking, flirtation)
No Objection: Complainant never indicated the conduct was unwelcome despite opportunities to do so
Initiation: Complainant initiated or encouraged the conduct
Relationship: Conduct occurred in context of a consensual relationship

Limitations of Welcome Conduct Defense:

Prior welcome conduct does not make later conduct welcome - employees can withdraw consent
Power imbalance (supervisor/subordinate) undermines claims of welcomeness
Evidence of welcomeness must be strong - courts are skeptical of this defense
Does not apply to quid pro quo harassment - submission to demands is not "welcome"

6. Legitimate Non-Discriminatory Reason (For Associated Claims)

If the employee alleges adverse employment action (termination, demotion) was retaliation for complaining about harassment, the employer can defend by showing:

The adverse action was based on legitimate, documented performance or conduct issues
The decision was made by someone without knowledge of the complaint
The timing was coincidental (issue predated the complaint)
Similarly situated employees who did not complain were treated the same way

7. Statute of Limitations

Under AB 9, employees must file a complaint with the California Civil Rights Department (CRD) within 3 years of the alleged harassment (for conduct occurring on or after January 1, 2020). After obtaining a right-to-sue letter, they have 1 year to file a civil lawsuit.

Calculate from the date of the last alleged harassing act
Continuing violation doctrine may extend the period if harassment was ongoing
Claims arising before January 1, 2020 are subject to the prior 1-year deadline

Attorney Services

Received a Harassment Complaint or Demand Letter?

Harassment allegations can result in significant liability, damage to your business reputation, and costly litigation. I help employers investigate complaints properly, implement effective defenses, and minimize legal exposure. A strategic response to harassment allegations can prevent or limit damages.

How I Can Help

Investigation Guidance: I advise employers on conducting legally compliant investigations that build defensible records and demonstrate good faith
Investigation Oversight: I serve as outside investigator or supervise internal investigations to ensure thoroughness and impartiality
Defense Strategy: I analyze claims, identify weaknesses, and develop comprehensive defense strategies tailored to your situation
Response Drafting: I prepare legally sound responses to demand letters that protect your interests while preserving defense options
Policy Review: I review and update anti-harassment policies and complaint procedures to maximize Faragher-Ellerth protection
Training Compliance: I help ensure compliance with SB 1343 training requirements and document training for defense purposes
Litigation Defense: I defend harassment claims before the CRD, in mediation, and in civil litigation
Settlement Negotiation: When resolution makes sense, I negotiate favorable settlements that minimize exposure and protect reputation

When to Consult an Attorney

Consider consulting an attorney immediately if:

You receive a demand letter from an attorney alleging harassment
A CRD (DFEH) complaint has been filed against your company
The complaint involves a supervisor or manager as the accused harasser
There are prior complaints against the same individual
The allegation involves physical conduct or quid pro quo harassment
The complainant has retained an attorney
You are unsure how to conduct a proper investigation
The complaint involves multiple employees or a pattern of conduct
You are concerned about retaliation claims
Significant damages or publicity are likely

What to Bring to Your Consultation

The complaint or demand letter received
Your company's anti-harassment policy
Harassment prevention training records for relevant employees
Personnel files for the complainant and accused
Any prior complaints involving either party
Investigation materials if investigation has begun
Communications between the parties (emails, texts)
Performance reviews and disciplinary records
Timeline of relevant events

Schedule a Consultation

Book a call to discuss your situation. I will review the complaint, assess your legal exposure, and advise on the best strategy for responding and protecting your business.

Contact Information

Email: owner@terms.law

Frequently Asked Questions

Act immediately. First, acknowledge receipt of the complaint in writing. Second, assure the complainant that retaliation will not be tolerated. Third, begin your investigation within 24-48 hours. Fourth, consider interim measures to separate the parties if appropriate. Fifth, issue a litigation hold to preserve relevant documents and communications. Do not discuss the complaint with the accused until you have interviewed the complainant. Do not minimize or dismiss the complaint, even if you believe it lacks merit. Your prompt, serious response will be critical to your defense.

Under California FEHA, employers are strictly liable for harassment by supervisors - meaning you are liable regardless of whether you knew about the harassment or took steps to prevent it. However, if the supervisor's harassment did not result in a tangible employment action (like termination, demotion, or denial of promotion), you may be able to limit damages using the Faragher-Ellerth defense. This defense requires proving that you exercised reasonable care to prevent harassment (policies, training, complaint procedures) and the employee unreasonably failed to use those preventive measures.

The distinction is critical. For supervisor harassment, the employer is strictly liable - no fault or knowledge requirement. For co-worker harassment, the employer is only liable if it knew or should have known about the harassment and failed to take immediate, appropriate corrective action. This means for co-worker harassment, you have a complete defense if you can show you promptly investigated the complaint and took reasonable remedial measures. For supervisor harassment, you may only be able to limit (not eliminate) damages through the Faragher-Ellerth defense.

California uses a "severe OR pervasive" standard - meaning conduct can be actionable if it is either very severe (even if it only happened once) or if less severe conduct was repeated frequently. Courts look at the totality of circumstances: how often the conduct occurred, how severe it was, whether it was physically threatening or humiliating, and whether it interfered with work performance. A single incident can be enough if it is sufficiently severe - for example, a physical assault or explicit quid pro quo demand. California law is more protective than federal law, so conduct that might not be actionable under Title VII may still violate FEHA.

Under AB 9 (effective January 1, 2020), employees have 3 years from the date of the alleged harassment to file a complaint with the California Civil Rights Department (CRD, formerly DFEH). This is significantly longer than the prior 1-year deadline. After receiving a right-to-sue letter from CRD, the employee has 1 year to file a civil lawsuit. For claims arising before January 1, 2020, the prior 1-year administrative filing deadline still applies. The statute runs from the last alleged act of harassment, and the continuing violation doctrine may extend this if harassment was ongoing.

SB 1343 requires California employers with 5 or more employees to provide harassment prevention training: 2 hours for supervisors, 1 hour for non-supervisory employees, within 6 months of hire or assumption of supervisory role, and every 2 years thereafter. Documentation of completed training is valuable evidence for your defense - it demonstrates you exercised reasonable care to prevent harassment, supporting the Faragher-Ellerth defense. Conversely, failure to provide required training can be used as evidence of negligence and may undermine your defense that you took reasonable preventive measures.

The Faragher-Ellerth defense can limit or eliminate damages for supervisor harassment when no tangible employment action occurred. You must prove two things: (1) You exercised reasonable care to prevent and promptly correct harassing behavior - shown through written anti-harassment policies, accessible complaint procedures, harassment training, and prompt investigation and response to complaints; and (2) The employee unreasonably failed to take advantage of preventive or corrective opportunities - for example, failing to use the complaint procedure despite knowing about it. This defense is NOT available if the harassment resulted in a tangible action like termination or demotion.

This depends on several factors: the strength of the evidence supporting the claim, the strength of your available defenses, whether the harasser was a supervisor (strict liability) or co-worker (negligence standard), the quality of your investigation and remedial response, your documentation of policies and training, litigation costs versus settlement costs, and reputation considerations. Early settlement may make sense if evidence is strong against you, if there were prior complaints you failed to address, or if publicity would be particularly damaging. Defense makes sense if you have strong defenses, took prompt remedial action, have good documentation, or if the claim is clearly without merit.

Responding to Harassment Allegations in California

Key California Harassment Laws

Critical Employer Defenses

Related Resources

Responding to Harassment Allegations in California

Key California Harassment Laws

Critical Employer Defenses