Successfully representing employees for over 35 years.

phone icon Free Consultation
phone icon916-245-2219
phone icon Free Consultation
divider

How to File a Sexual Harassment lawsuit

separator

In legal terms, sexual harassment is defined as any unwelcome sexual conduct in the workplace that creates an intimidating, hostile or offensive working environment. In real life, sexual harassment is very broad, especially in California. It ranges from offensive jokes, sexual comments, comments about your appearance, inappropriate nicknames, continued advances, or sexual touching.

Learn About the Two Types of Sexual Harassment

1. Quid Pro Quo
2. Hostile work environment

Quid pro quo sexual harassment occurs when a term of employment is conditioned upon acceptance of an unwelcome sexual advance. For example, when a manager or supervisor makes promises to an employee in exchange for sexual favors, this is the qui pro quo type of harassment.

The hostile work environment type of sexual harassment is by far the most common type of sexual harassment. The hostile work environment sexual harassment occurs when an employee is subject to unwelcome sexual comments or conduct that creates an uncomfortable work environment. Behavior ranges from offensive jokes, sexual comments, comments about your appearance, inappropriate nicknames, continued advances, or sexual touching. Also under the hostile work environment type, if you have witnessed harassment of others or overheard inappropriate comments aimed toward other co-workers, you may still have a claim of your own if it has made you uncomfortable.

Know What Constitutes Sexual Harassment

It is important for victims to know their rights. Using tools such as literature on sexual harassment or obtaining the advice of an attorney to understand what conduct constitutes sexual harassment is a powerful step in confirming a victim’s rights and can build confidence.

Often when representing sexual harassment victims, we find that their stories seem similar. While every case is different, frequently, harassers display the same types of behavior and say similar things. It is important that you make yourself aware of what sexual harassment is so that you know what to look for.

Some common examples include, but are not limited to the following:

  • Offensive sexual comments, including repeated sexual innuendos, inappropriate jokes, discussion of sexual preferences or practices, nicknames, comments about individuals’ bodies or clothing, and obscene stories.
  • Sexually oriented demeaning name calling and/or referring to employees as “sweetie,” “honey,” and “baby.”
  • Persistently making unwanted sexual advances or romantic proposals.
  • Staring, looking an individual up and down, whistling, or other inappropriate gestures or sounds.
  • Showing or sending a person emails or text messages containing pornographic pictures, calendars, or other sexually inappropriate images.
  • Any unwelcome sexual touching, such as touching, pinching, attempting to give a person a kiss, massaging, purposefully rubbing against a person, etc.

Keep a Journal

Start collecting as much detailed evidence as possible about the specifics of your harassment as soon as possible. Be sure to save any inappropriate emails, texts messages, cards or pictures you have received.

One of the most important things for a sexual harassment victim to do in an employment case is to keep a journal or write down as much of the inappropriate behavior or actions that have taken place as soon as possible. Often, there is no documentary “evidence” in sexual harassment cases. In those situations, we must rely on your recollection. This is why is it important that you are able to remember many of the incidents that have occurred. Write down the specifics of everything that feels like harassment. Make sure to write down what happened, when it took place, and who was there. If anyone else saw or heard the harassment, write that down that as well.

Tell the Harasser to Stop if You are Comfortable Doing So

Believe it or not, many times this works. Often when you confront the person directly, the harassment is likely to end, especially if it is at a fairly low level. Telling a person directly to stop can be difficult though, especially when a manager or supervisor is the harasser. If you are not comfortable confronting the person, especially if he/she is a manager, file a complaint with the human resources department or call our office.

File a Complaint with Your Manager or Human Resources Department

If the harasser has ignored your requests to stop or you are uncomfortable talking to the harasser face to face, you should escalate your complaint. Check your company’s employee handbook. If there is no company handbook or company policy that you are aware of, tell someone in HR that you need to make a complaint.

Although you might be tempted to skip this step, don’t. The Supreme Court has ruled before that if an employee fails to use the company’s complaint procedure to put the employer on notice of the harassment (and give the employer a chance to correct the problem), the employer cannot later hold the company responsible in a lawsuit for harassment.

Don’t Take Your Manager or HR Department’s Word That You Don’t Have a Case

We are often lead to believe that a human resources department, also referred to as personnel department, is there to help the employee. This is not true. Most all HR departments have one goal: protect the company.

After a sexual harassment victim complains to management or the company’s HR department, it is important for sexual harassment victims to realize that they should not necessarily take management’s word in determining whether they have a case. Many times clients have brought in letters from their HR department stating “The Company is closing its investigation because there were no findings of sexual harassment.” In reality, that person had a strong sexual harassment case. The information your manager or HR gives to you is frequently not true, especially when it comes to sexual harassment cases since their main concern is to protect the company and sometimes even the harasser! The information management or HR gives to an employee who has suffered from sexual harassment will likely be incorrect to protect the company.

Even if your manager or HR department has the best of intentions, they are not attorneys, and likely do not understand all the complex details of the area of law.

Understand What Retaliation Is

It is illegal for an employer to retaliate against a sexual harassment or discrimination victim for filing a charge making a complaint within the company, participating in a sexual harassment investigation, or filing a complaint with the Department of Fair Employment and Housing (DFEH) or Equal Employment Opportunity Commission (EEOC).

Adverse action can range from cutting a person’s hours to termination. The most common types of adverse action include reduction in hours, assigning a person to a less desirable shift, demoting a person, transferring a person, reassigning them to a different location, writing an employee up, suspension, and termination.

Many times, if a victim of sexual harassment does not realize that it is unlawful for an employer to fire or demote him or her for making a sexual harassment complaint, the victim might be more likely to stay quiet and allow the harassment to continue. It is important that victims of sexual harassment understand that if they are fired for making a complaint or filing a sexual harassment lawsuit, they will be able to bring an additional case due to unlawful retaliation.

It is also illegal for your employer to take adverse action against you for hiring a lawyer and filing a sexual harassment lawsuit. We have represented many victims of sexual harassment who still work for the company that they are suing. In almost every single one of those cases, the employer never took any adverse action against our client. In fact, often, our clients are treated better by their employer after they have filed a claim than before they sued.

See A Doctor Early If You Are Suffering From Stress or Anxiety

A common mistake that clients make is sometimes thinking that you should or can deal with sexual harassment on your own. The common symptoms of sexual harassment and the stress that comes along with enduring it on a constant basis include anxiety, nervousness, sleeplessness, nightmares, depression, worry, and fear. Often, a victim may experience those same symptoms if they have complained, and their manager or HR department failed to take action.

Seeing your doctor will also help you prove your emotional distress later in the case. If you do see a doctor, that treating practitioner may later testify as a witness about the effects of the sexual harassment on the victim. Your medical records will also be proof of your emotional distress.

Exhaust Your Administrative Remedies

In harassment and discrimination cases, before an employee can file a lawsuit, that person must first complete a step in order to “exhaust his/her administrative remedies.” This is done by filing a claim with the California Department of Fair Employment and Housing (DFEH) or the federal Equal Employment Opportunity Commision (EEOC). The filing of the administrative claim is required by the statutes, and is necessary step before one can bring a lawsuit. The process of exhausting your administrative remedies is actually quite simple, with the help of an attorney.

Do not wait too long to seek the advice of an attorney or contact the Department of Fair Employment and Housing. In California, a complaint must be made with the DFEH within one year from the date of the last incident of harassment or discrimination that took place.

Get the Advice of An Attorney as Soon as Possible

Victims sometimes wait too long to get an attorney involved in their sexual harassment case. It is best to get an attorney involved in your case as early as possible. An attorney can help a sexual harassment victim to prepare to file a complaint with their human resources department if the victim is still working, sit in with the victim during the company’s investigation, file a claim on your behalf with the DFEH or EEOC to make sure that all potential legal claims are included and that they are within the statute of limitations.

We know the process and can help you decide the best strategy with which to move forward. An attorney’s communications with not only a client, but even a potential client or caller seeking to get advice, are strictly confidential. We are not allowed to disclose this information to anyone.

Do Not Pay An Attorney a Retainer

Many attorneys will take your case if you pay him/her a retainer. You should not pay an attorney to take your case. Look for an attorney who is experienced in sexual harassment and who will take your case on a contingency, which means that the attorney does not get compensated unless you win money. You should also look for an attorney who will advance the case costs instead of asking you to pay those costs. Common court costs including the case filing fee and deposition costs.