Workplace Harassment

Sacramento Employment Attorney

If you have been a victim of workplace harassment, you are not alone. Learn about your resources and how the Ruggles Law Firm can help you fight for your employment rights.

Matthew J. Ruggles

30+ Years of Employment Litigation Experience

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Workplace harassment is an unfortunate reality that affects employees across industries, undermining their well-being, productivity, and career growth.

Matt Ruggles has litigated scores of harassment lawsuits from both sides – for decades as a defense attorney representing corporations at one of the largest law firms on Earth; and since 2016 representing illegally harassed employees against corporate employers. Additionally, Matt has recovered millions of dollars from large and small corporations, partnerships, and limited liability companies and individuals who broke California law by illegally harassing employees at work.

If you have faced harassment in your place of employment, the Ruggles Law Firm is here to offer you expert information, guidance, and assistance. 

Understanding California Sexual Harassment and Other Forms of Illegal Harassment

To understand the nuances of workplace harassment, it is important to establish a crucial distinction within the topic of workplace harassment: sexual harassment versus all other forms of illegal workplace harassment (i.e. protected characteristic harassment). While both types are unacceptable and unlawful, these two differing forms of harassment encompass distinct behaviors that warrant separate consideration and analysis.

Sexual harassment involves unwelcome sexual advances, requests for sexual favors, or other verbal, physical, or visual conduct of a sexual nature. It encompasses actions that create a hostile or offensive work environment or impact an individual’s employment opportunities due to their response to such conduct. Sexual harassment is an egregious violation of an individual’s rights, and it is crucial to recognize its unique characteristics and legal implications.

Illegal workplace harassment extends beyond the realm of sexual misconduct (sexual harassment). Workplace harassment encompasses unwelcome behavior based on protected characteristics, such as race, color, national origin, religion, gender, sexual orientation, disability, or age. Workplace harassment manifests in various ways, including derogatory comments, offensive jokes, slurs, verbal abuse, and visual displays, among others. Illegal harassment creates an environment that is intimidating, hostile, or offensive, undermining an individual’s well-being, dignity, and professional opportunities.

Sexual Harassment Basics

Sexual Harassment is defined as unwelcome verbal, visual, or physical conduct of a sexual nature that is severe or pervasive AND affects working conditions OR creates a hostile work environment.
Let’s define each part of workplace sexual harassment to give you an in-depth understanding of what types of behavior or actions do in fact cross the threshold into sexual harassment under California law.

Sexual Harassment Can Manifest in Two Forms: Hostile Work Environment and Quid Pro Quo

Workplace sexual harassment is categorized in two distinct forms: Hostile Work Environment and Quid Pro Quo.

Hostile Work Environment Harassment:

The most common form of sexual harassment that employees are likely to encounter is misconduct that results in a “hostile work environment.”

Hostile work environment harassment refers to unwelcome conduct of a sexual nature or based on sex that creates an intimidating, offensive, or hostile working environment.  It includes a range of unwelcome behaviors, such as sexually explicit comments, jokes, derogatory language, offensive gestures, unwarranted physical contact, sexually explicit images, or other behavior that is both subjectively and objectively offensive. The conduct must be severe or pervasive enough to alter the conditions of employment and create an abusive or hostile atmosphere.

Quid Pro Quo Harassment:

Quid pro quo (Latin for “this for that”) harassment occurs when an individual in a position of power, typically a supervisor, manager, or someone with authority over employment decisions, demands sexual favors, makes unwelcome sexual advances, or engages in other verbal or physical conduct of a sexual nature.

Example of Quid Pro Quo Sexual Harassment:

Example 1: “David, a manager at a restaurant, tells Jane, a waitress, that she will only get the coveted evening shifts if she goes out on a date with him. He makes it clear that her schedule depends on her compliance, creating an uncomfortable and coercive work environment.”

The key characteristic of quid pro quo harassment is the link between the submission or rejection of such conduct and employment benefits or consequences. It involves the harasser using their position to exert pressure or control over the victim’s employment status, such as promotions, raises, job security, or favorable work conditions.

While it’s important to address all forms of sexual harassment, statistics suggest that quid pro quo sexual harassment is generally less common compared to hostile work environment.

Unwelcomed Conduct

The essential nature of illegal workplace harassment, including sexual harassment, is that the conduct is unwelcomed.  Understand that the notions of “consent” and “mutual participation” play a significant role in determining whether workplace conduct crosses the line into harassment. An isolated incident or a consensual interaction between colleagues, even if it has a sexual undertone, may not meet the legal threshold for sexual harassment.  Simply put, if you engage in the same sort of conduct that you characterize as “harassment,” it’s doubtful you can allege a claim for workplace harassment because you voluntarily engaged in the exact same workplace misconduct.

Sexual harassment in the workplace can often have repercussions that extend far beyond the immediate targets, impacting coworkers who are not directly subjected to the unwelcomed conduct but have witnessed the misconduct or heard about the misconduct as part of the employee’s work environment.

Witnessing sexual harassment and other forms of workplace misconduct may trigger distress, making employees feel unsafe and uncertain about their own well-being within the workplace. This, in turn, can lead to reduced productivity, increased absenteeism, and heightened turnover rates, affecting the overall morale of the entire team.

Here are some key points that help define unwelcomed conduct in California Workplace Sexual Harassment:

Absence of Consent:

Unwelcomed conduct involves actions or behavior of a sexual nature that occur without the explicit or implicit consent of the recipient. It means that the conduct is not wanted or invited by the person experiencing it.

Objective Perception of Harassment:

It is assessed from the viewpoint of a reasonable person in the same situation, considering the totality of the circumstances.

Reasonable Person Standard:

The determination of unwelcomed conduct is based on the perspective of a reasonable person in the same circumstances. It considers the social context, workplace norms, and the specific relationship between the individuals involved.

Subjective Perception of Harassment:

The determination of whether conduct is unwelcomed is based on the subjective perception of the person who experiences it. Therefore, the person that perceived the conduct was offended.

Hostile, Offensive, or Intimidating Effect:

The unwelcomed conduct must create a hostile, offensive, or intimidating work environment for the person experiencing it. It is not limited to a single incident but can also arise from a pattern of behavior or a series of incidents that collectively contribute to a hostile work environment.

Power Imbalance:

The existence of a power imbalance between the parties involved, such as a supervisor-subordinate relationship or an individual in a position of authority, can significantly impact the perception of unwelcomed conduct. The power differential can make it more difficult for the affected person to express their objections or refuse advances.

Verbal, Non-Verbal, or Physical Conduct:

Unwelcomed conduct can manifest in various forms, including verbal comments, jokes, innuendos, advances, requests for sexual favors, physical contact, gestures, or any other conduct with sexual undertones. It can also include the use of technology, such as sending explicit emails or text messages.

Verbal Sexual Harassment

Verbal sexual harassment refers to unwelcomed verbal conduct of a sexual nature that occurs in the context of the workplace, creating a hostile or offensive work environment for the victim. It involves the use of explicit or implicit sexually suggestive language, comments, jokes, innuendos, or propositions directed towards an individual or a group of individuals based on their sex, gender, or sexual orientation.

It is crucial to understand that verbal sexual harassment can encompass a wide range of behaviors, including those that might seem less explicit, such as complimenting a nonsexual body part such as hands, hair, skin, or neck.

Examples of Verbal Sexual Harassment

Sexual comments or jokes: Making sexually explicit comments, jokes, or anecdotes that are offensive, degrading, or humiliating.

Sexual advances or propositions: Making unwelcome sexual advances, requests for sexual favors, or engaging in unwanted sexual discussions or conversations.

Sexual innuendos or gestures: Using sexually suggestive language, double entendre, or non-verbal cues, such as lewd gestures, winks, or inappropriate body language.

Sexually explicit or offensive materials: Displaying or sharing sexually explicit or offensive materials, such as explicit images, videos, or written content, either physically or through electronic means.

Gender-based insults or slurs: Using derogatory language, insults, or slurs based on an individual’s sex, gender identity, or sexual orientation.

Unwanted sexual comments about appearance or clothing: Making inappropriate or offensive comments about an individual’s physical appearance, body, clothing, or personal grooming choices.

Creating or participating in online groups, forums, or chat rooms where explicit or offensive sexual discussions about coworkers occur.

Recording and sharing unauthorized audio or video clips of sexually explicit conversations with coworkers on social media platforms.

Engaging in sexting or sending explicit text messages to colleagues using personal or work-related messaging apps.

Broadcasting sexually explicit or offensive language about coworkers via livestreaming platforms or video-sharing platforms.

Participating in or sharing sexually explicit or offensive conversations in workplace-related online communities, such as discussion boards or professional networking sites.

Using video-sharing platforms to post or circulate videos containing sexually explicit or derogatory comments about coworkers.

Verbal threats or intimidation of a sexual nature: Using sexually threatening or intimidating language, including explicit or implicit threats of sexual violence or retaliation.

It is important to note that for verbal conduct to qualify as workplace harassment, it must be unwelcome, meaning that the recipient has not consented to or encouraged such behavior.

Visual Sexual Harassment

Visual sexual workplace harassment refers to the unwelcome display or distribution of visual materials of a sexual nature in the workplace that creates a hostile, intimidating, or offensive environment for the victim. It encompasses the use of explicit or implicit sexually suggestive images, photographs, videos, or other visual representations that are directed towards an individual or a group of individuals based on their sex, gender, or sexual orientation.

Examples of Visual Sexual Harassment

Display of explicit or sexually suggestive materials: Exhibiting or openly displaying sexually explicit images, posters, calendars, cartoons, or other visual content that is offensive, degrading, or demeaning.

Sharing or distribution of explicit content: Sharing, circulating, or distributing sexually explicit materials, such as explicit images, videos, or written content, through physical means or electronic platforms within the workplace, without the consent of the recipient(s).

Unwanted exposure to explicit materials: Exposing individuals to sexually explicit or offensive materials without their consent, whether through electronic devices, emails, or physical means.

Non-consensual sharing of intimate images: Sharing or distributing intimate or sexual images or videos of an individual without their consent, also known as “revenge porn” or “non-consensual pornography.”

Inappropriate use of technology: Using workplace technology, including computers, smartphones, or other devices, to access, view, or distribute sexually explicit or offensive materials.

Visual surveillance or voyeurism: Engaging in the non-consensual visual surveillance of individuals in private areas or situations, or the creation and distribution of images or videos taken without consent in compromising or intimate situations.

Sending explicit or pornographic images or videos through work-related email accounts or messaging platforms.

Sharing offensive or sexually explicit memes, GIFs, or graphics through workplace communication channels or social media platforms.

Creating and distributing sexually suggestive or offensive digital artwork, including drawings or digitally altered images, via company computers or online platforms.

Displaying sexually explicit or offensive images on computer screens, mobile devices, or shared monitors in the workplace.

Using video conferencing tools to display sexually explicit or offensive visual content during work meetings or presentations.

Sending unsolicited or explicit photographs or videos through workplace messaging apps or text messages.

Creating or participating in workplace chat groups or forums where members share explicit or inappropriate images or videos.

Using webcams or other recording devices to capture and share inappropriate or sexually explicit visuals of colleagues without their consent.

Accessing and distributing explicit or pornographic material using workplace computers or networks.

Using augmented reality (AR) or virtual reality (VR) technologies to create or engage in sexually explicit or offensive scenarios within the workplace environment.

Physical Sexual Harassment

Physical sexual harassment refers to a form of workplace misconduct characterized by unwelcome physical behaviors or advances of a sexual nature that create an intimidating, hostile, or offensive working environment. It encompasses any non-consensual physical contact or proximity that is sexually suggestive, coercive, or inappropriate, resulting in the degradation, humiliation, or discomfort of an individual within the workplace.

Examples of Physical Sexual Harassment

Unwanted physical contact: Any form of deliberate touching, groping, fondling, or assaultive behavior that is sexual in nature, without the recipient’s consent or against their expressed wishes.

Physical intimidation: Physical actions or gestures that are intended to intimidate, threaten, or frighten an individual based on their sex or gender, including invading personal space, cornering, blocking movements, or using aggressive body language.

Forced sexual acts: Coercing or pressuring someone into engaging in any sexual activity against their will or without their explicit consent, including sexual assault, rape, or other non-consensual sexual acts.

Exhibitionism: Exposing one’s private or intimate body parts, engaging in indecent exposure, or displaying sexually explicit materials with the intent to harass, offend, or create discomfort for others in the workplace.

Identity, Gender, and Sexual Attraction: Irrelevant for Workplace Harassment

In the case of workplace sexual harassment, it is important to emphasize that identity is not a determining factor when it comes to addressing claims of mistreatment.  In other words, workplace sexual harassment is not contingent on the identity or gender of the perpetrator or victim.  

Both men and women can be victims of harassment, and both men and women can be perpetrators. It is crucial to recognize that harassment is not limited to a particular gender dynamic, and anyone can experience or perpetrate this unacceptable behavior.

One common misconception about sexual harassment is that there is a requirement of sexual attraction on the perpetrator’s part.  Once again, it is crucial to understand that sexual harassment is not dependent on the presence of sexual attraction. In fact, the absence of sexual attraction on the part of the perpetrator is irrelevant when determining whether an incident qualifies as sexual harassment. Sexual harassment is fundamentally about power, control, and the violation of an individual’s dignity and rights.

Protected Characteristic Workplace Harassment (Nonsexual Harassment)

While sexual harassment is a well-known (and the most common) form of workplace harassment, it is essential to be aware that other forms of harassment are also illegal under California law.

Beyond sexual harassment, other forms of harassment that create a hostile, intimidating, or offensive environment for an individual or a group of individuals based on protected characteristics are also illegal. These protected characteristics include race, color, national origin, religion, gender, age, disability, and sexual orientation. It is crucial to note that harassment can occur between employees, by a supervisor or manager, or even by non-employees such as clients or customers.

Types of Protected Characteristic Workplace Harassment (Beyond Sexual Harassment):

Racial Harassment:

This type of harassment involves derogatory remarks, racial slurs, offensive jokes, or any other unwelcome behavior that targets an individual based on their race or ethnicity. Examples include making racial stereotypes, displaying racially offensive images, or using racially derogatory language.

Religious Harassment:

Harassment based on religious beliefs can take many forms, such as mocking someone’s religious practices, making offensive comments about their faith, or subjecting them to unwanted religious discussions or proselytizing. It is important to respect an individual’s religious beliefs and practices in the workplace.

Age Harassment:

Age-based harassment occurs when an individual is subjected to derogatory or offensive comments, jokes, or actions because of their age. This can include discriminatory remarks about an individual’s abilities, appearance, or suitability for a job based on their age.

Disability Harassment:

Individuals with disabilities are protected from harassment under the law. Disability harassment can involve offensive comments, ridicule, or the denial of reasonable accommodations needed for a disabled employee to perform their job effectively.

Gender Identity or Sexual Orientation Harassment:

Harassment based on an individual’s gender identity or sexual orientation is also illegal. This can include derogatory comments, slurs, or offensive jokes targeting LGBTQ+ individuals.

Understanding the “Severe or Pervasive” Standard in Workplace Harassment Claims

Understanding the significance of the “severe or pervasive” requirement is essential when evaluating potential workplace harassment claims, whether sexual or characteristic-based in nature.

Severe or Pervasive: What Does It Mean?

In the context of workplace harassment, the phrase “severe or pervasive” sets a threshold for determining whether the conduct in question is severe enough or occurs frequently enough to be considered illegal under California law. Simply put, an isolated incident, unless exceptionally severe, may not meet the legal standard for harassment.

Severe Harassment:

Severe harassment refers to conduct that is particularly extreme or highly offensive, creating an intolerable work environment. This can include acts of physical violence, threats, or exceptionally egregious behavior that clearly crosses the line of acceptable workplace conduct. A single severe incident, such as a physical assault or a blatantly discriminatory act, can be considered severe harassment that results in a hostile work environment.

Pervasive Harassment:

Pervasive harassment, on the other hand, involves a pattern of unwelcome behavior that occurs on a frequent or ongoing basis. It refers to conduct that is persistent and pervasive, creating a hostile, intimidating, or offensive work environment. This can include repeated offensive comments, slurs, or actions that target an individual based on their protected characteristics, such as their race, gender, religion, or sexual orientation.

Over time, the accumulation of non-severe incidents can have a cumulative effect on an individual’s well-being and the workplace. Each incident adds to the overall discomfort, stress, and anxiety experienced by the victim, which can lead to diminished job satisfaction, decreased productivity, and even physical or mental health issues.

The “severe or pervasive” requirement serves as an important legal standard in workplace harassment cases. It helps distinguish isolated incidents or minor annoyances from conduct that has a significant impact on an individual’s work environment. This requirement ensures that the law focuses on addressing and rectifying conduct that is truly harmful, while not undermining legitimate concerns.

It is essential to note that even if a specific incident does not meet the severe or pervasive standard, it does not necessarily mean it is acceptable behavior or that your rights have not been violated. Employers have a responsibility to maintain a safe and respectful workplace, and they should take appropriate action to address any form of harassment, regardless of whether it meets the legal threshold.

Unreasonable Interference with an Employee’s Work Performance

When the harassment becomes so pervasive or severe that it significantly hinders an employee’s ability to perform their job duties, it qualifies as “unreasonably interfering” with their work performance. This interference can manifest in various ways, including decreased productivity, emotional distress, anxiety, interference with the ability to concentrate, poor attendance, missed deadlines, and/or a general decline in the overall quality of work.

An employee subjected to harassment may alter their behavior as a coping mechanism. For instance, they might avoid certain areas of the workplace or certain persons in the workplace, withdraw from social interactions, or become more reserved.

The severity of the interference will be a critical factor in determining the validity of an employee’s claim and it is necessary to show that the unwelcomed conduct legitimately hurt the employee’s job performance.

Subjective Analysis vs. Objective Analysis:

Two primary approaches are often employed to evaluate if unwelcomed conduct crosses the threshold into illegal harassment: subjective analysis and objective analysis.

Subjective Analysis

Subjective analysis primarily focuses on the individual’s perception of the unwelcomed conduct. In this approach, the court or investigators consider how the affected employee subjectively experienced the behavior or actions, meaning, was the employee actually offended by the alleged misconduct. This means that the impact of the conduct on the employee’s emotional well-being and work performance is at the forefront of the evaluation.

Subjective analysis is vital because employees may respond differently to similar situations based on their personal sensitivities and past experiences. What may be tolerable to one employee could be deeply distressing to another.  For instance, “locker room talk” among a group of men in the construction industry may not be illegal “harassment” if the entire group of men engaged in the banter and none were offended. On the other hand, that same sort of exchange likely would offend a group of office workers in a professional services environment.

Objective Analysis

Objective analysis, on the other hand, assesses the unwelcomed conduct from an outsider’s perspective. The court or investigators will look at the behavior or actions objectively, disregarding the individual employee’s feelings or sensitivities. Instead, they will determine whether a “reasonable person” in a similar situation would find the conduct offensive or hostile.

Objective analysis is essential to prevent baseless claims from adversely affecting employers, especially when the employee’s perception might not align with a reasonable standard. It helps avoid misinterpretations and ensures a fair and impartial assessment of the situation.  For instance, telling someone “Good Morning” is not objectionably offensive, and therefore would likely fail to qualify asillegal harassment because a reasonable person generally would not be offended by this common greeting.

What Specific Laws Protect California Employees Against Workplace Harassment?

Here is a summary of key laws that safeguard employees’ rights in California with regard to workplace harassment:

Fair Employment and Housing Act (FEHA) Government Code 12940, et seq.

The California Fair Employment and Housing Act (FEHA) is the primary California law that prohibits employment discrimination based on protected characteristics, including but not limited to race, color, national origin, religion, sex, gender, sexual orientation, gender identity, gender expression, age, disability, medical condition, genetic information, marital status, military or veteran status, or pregnancy and childbirth-related conditions.

The FEHA applies to all private sector employers with five or more employees and protects employees, job applicants, and individuals engaged in unpaid internships or apprenticeships.  The FEHA enables employees that have been a victim of illegal discrimination to recover substantial damages, including punitive damages, as well as an award of reasonable attorney’s fees.  In most cases, a claim for discrimination under the FEHA is the primary claim in an employment discrimination lawsuit.

NOTE: Filing a lawsuit for violation of the FEHA requires an employee to “exhaust administrative remedies” by filing a administrative claim for discrimination with the California Civil Rights Department (former the Department of Fair Employment and Housing (DFEH)) and obtaining a “Right to Sue” letter from the Department. Although filing an administrative claim is not difficult to do, it requires legal advice to do so correctly and normally should be done by your attorney immediately prior to filing a civil lawsuit in the California Superior Court of the federal District Court.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

Title VII is a federal law that prohibits employment discrimination based on race, color, religion, sex, and national origin.  For the most part, Title VII is the federal law that protects employees in the same manner of the California Fair Employment and Housing Act (FEHA).

Title VII applies to employers with 15 or more employees, including state and local governments, labor organizations, and employment agencies.

Because the legal remedies under Title VII generally are more limited compared to the remedies available under the California Fair Employment and Housing Act, Matt always encourages employees to pursue claims under the California FEHA rather than Title VII.

It is crucial for employees to consult with an experienced employment attorney to fully understand their rights, navigate the complaint process, and pursue appropriate legal action if necessary.

Most Harassment Claims fall under the California Fair Employment and Housing Act (FEHA)

Identifying the Components of a FEHA Harassment Claim

If you believe you have been a victim of workplace harassment, it is essential to understand the components of a claim under California’s Fair Employment and Housing Act (FEHA).

Protected Characteristics:

FEHA prohibits harassment based on various protected characteristics, including race, color, religion, sex, gender identity, sexual orientation, national origin, disability, age (40 years and older), and genetic information. To pursue a successful claim, you must demonstrate that the harassment was substantially motivated by one or more of these protected characteristics.

This means that as part of the adverse employment decision (i.e. the termination decision), the Employer actually considered illegal criteria (e.g. race, gender, sexual orientation, etc.) as part of the reason for the termination, even if the illegal reason was not the sole or even the primary basis for the adverse employment action (termination).

worker at factory experiencing harassment

Adverse Employment Action:

In most cases that Matt handles, the adverse employment decision is termination of employment. However, the phrase “adverse employment action” is not limited to termination, but also includes a significant negative change in your employment status or treatment.

Adverse employment actions can take various forms, but they generally involve actions that negatively impact an individual’s employment status, terms, or conditions. Some examples of adverse employment actions recognized under FEHA include:

Termination or dismissal from employment: being fired or involuntarily separated from your job (i.e. layoff)

Demotion to a lower position or reduced responsibilities: Being moved to a lower-ranking position with reduced responsibilities, lower pay, or diminished prospects for advancement.

Unfavorable changes in work schedule, hours, or shift assignments.

Reduction in pay, benefits, or compensation.

Harassment or hostile work environment that creates a pervasive atmosphere of intimidation, ridicule, or insult that is related to a protected characteristic; sexual harassment is most common, but harassment can also be based on any other protected characteristic, including disability, gender, sexual orientation, or any other characteristic protected by the FEHA.

Retaliation for engaging in protected activities, such as filing a discrimination complaint or participating in an internal workplace investigation concerning alleged harassment or discrimination, even if you are only a “witness” to the alleged misconduct and not the direct victim. 

It is important to note that this definition is specific to the California Fair Employment and Housing Act and may vary in other jurisdictions or under federal employment laws. If you have specific concerns or need legal advice regarding an employment situation, it is recommended to consult with an attorney or a relevant legal professional familiar with employment law in California.

Causal Connection:

An essential element of a FEHA discrimination claim is establishing a causal (factual) connection between the adverse employment action and the protected characteristic. You must demonstrate that the adverse action would not have occurred if it were not for your protected characteristic. This requires strong evidence to establish a clear link between the discriminatory treatment and the harm suffered.

In most cases, the factual connection between the adverse employment action and the protected characteristic involves derogatory comments or jokes concerning the employee’s protected characteristic (e.g. jokes or snide remarks about an employee’s disability, sexual orientation, race, etc.).

What makes your California Workplace Harassment Case STRONG

A strong California workplace retaliation claim is characterized by several key factors that collectively strengthen the employee’s case and increase the likelihood of a successful outcome. Here are the elements that contribute to the strength of such a claim:

Severe or Pervasive Conduct:

Severe harassment involves extreme and intolerable conduct, often stemming from a single incident like physical assault or discrimination. Pervasive harassment is a repeated pattern of unwelcome behavior creating a hostile work environment.

Adverse Employment Actions:

In cases of harassment under the FEHA, an adverse employment action is not generally required because harassment is an adverse employment action. Therefore, if you experience harassment at work, how your employment ended would not necessarily be relevant for a claim for harassment.

Documentation and Evidence:

Strong evidence and documentation can greatly strengthen your workplace harassment case. It is essential to keep a record of incidents, including dates, times, locations, individuals involved, and any witnesses. Preserve any relevant emails, text messages, or other forms of communication that support your claims.

Witnesses and Corroborating Testimony:

The presence of witnesses who can corroborate your account of the harassment can significantly bolster the strength of your case. Coworkers, supervisors, or other individuals who observed the harassment or were subjected to similar treatment can provide crucial testimony to support your claims.

Harassment Based on Protected Characteristics:

If the harassment you experienced was based on your protected characteristics, such as race, color, national origin, religion, gender, age, disability, sexual orientation, or gender identity, it strengthens your case. California law prohibits harassment based on these protected characteristics and proving that the harassment was motivated by discrimination adds weight to your claim.

Reporting and Documentation of Complaints:

It is important to demonstrate that you took appropriate action by reporting the harassment to your employer or the appropriate channels within your organization. Documenting your complaints, including dates, whom you reported the incidents to, and any responses received, strengthens your case by showing that you made reasonable efforts to address the situation.

Adherence to Internal Policies:

If your employer had established anti-harassment policies, procedures, or training programs, and you followed these protocols, it can bolster your case. Demonstrating that you adhered to the company’s policies can further demonstrate your commitment to resolving the issue appropriately.

What makes your California Workplace Harassment Case

A weak California workplace retaliation claim lacks the necessary elements to establish a clear connection between the adverse employment action and the protected activity. Here are factors that can weaken a workplace retaliation claim:

Failure to Meet the "Severe or Pervasive" Standard:

Under California law, workplace harassment must be either “severe” or “pervasive” to be considered unlawful. “Severe” refers to conduct that is particularly egregious, extremely offensive, or highly harmful. “Pervasive” means that the harassment is frequent, repetitive, or occurs over an extended period. If the behavior you experienced does not meet this standard, it may weaken your claim. It is important to consult with an experienced employment lawyer to evaluate whether your specific circumstances meet the legal threshold.

Isolated Incidents:

Isolated incidents of offensive or inappropriate behavior, without a pattern of repetition or severity, may weaken a workplace harassment claim. While such incidents are still unacceptable and should be addressed, they may not be sufficient to establish a hostile work environment or prove a violation of California law. To strengthen your claim, it is essential to demonstrate a consistent pattern of harassment or misconduct over time.

Lack of Objective Evidence:

In workplace harassment claims, objective evidence plays a crucial role in substantiating your allegations. Objective evidence includes documents, such as emails or text messages, that directly support your claim. Without tangible evidence, it becomes more challenging to prove the occurrence of harassment, especially when it involves verbal or non-verbal conduct. It is important to gather any available evidence or identify potential witnesses who can support your allegations.

Failure to Report the Harassment:

A delay in reporting the harassment or failure to report it to the appropriate authorities can weaken your claim. It is important to promptly report any incidents of workplace harassment to your employer’s designated reporting channels or human resources department, following the established procedures outlined in your company’s policies. Timely reporting demonstrates your commitment to addressing the issue and can help establish a stronger case.

Lack of Corroborating Witnesses or Documentation:

Corroborating witnesses and documentation significantly strengthen a workplace harassment claim. If there are no witnesses who can substantiate your allegations or if you lack supporting documentation, it may weaken your claim. Identifying and involving witnesses who have firsthand knowledge of the harassment or can provide relevant information can help strengthen your case. Documenting incidents, such as writing down dates, times, and details of the incidents, can also contribute to the strength of your claim.

Lack of Witness Corroboration:

Witnesses who can attest to the protected activity, the subsequent adverse action, and any change in behavior or treatment can bolster the claim’s credibility. Without corroborating witnesses, the claim’s strength may diminish.

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How to Prove and Win Your California Workplace Harrassment Lawsuit

Gather Harassment Evidence:

You will need to gather evidence to support your claim. This may include documents, emails, witness statements, and any other evidence that supports your case.

Evidence should be printed out.  Do not write on, alter, or change any of your documents.  Do not make any marks or changes to the documents.  Changing or marking a document will raise suspicion that the documents are fake because the documents were altered.  In California, copies are acceptable and generally admissible if the original document is no longer available.

CAUTION: It is important to note that taking company property without permission is illegal in California. Such actions are considered theft and can result in serious consequences, including criminal charges and civil liability. Employees should always follow proper procedures and seek authorization before taking any company property, including equipment, supplies, confidential business information or trade secrets.  Oftentimes, an employee that has a valid claim for wrongful termination inadvertently can self-sabotage the claim by improperly taking employer records or documents prior to getting fired. Doing so will give the employer the “after acquired evidence” defense which states that the employer learned of misconduct after your termination (improper removal of employer records or document) that if it had been known prior to termination, the employee would have been terminated for that reason independent of the stated reason for termination.

Successful application of the “after acquired evidence” defense can severely limit the amount of money you may be able to recover in the lawsuit.  See McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995).

Create a Timeline:

A timeline will help to tell the story of your employment and create a clear picture of what happened.  It will also help you communicate better the details of your claim with your attorney.  

The BEGINNING of the timeline is the date you started working for your employer.  The END of the timeline is the last retaliatory event which is typically termination.  Include the following:

  • Periodic increases in compensation (raises).
  • Annual Job Performance scores, ratings or evaluations.
  • Job Titles for each position held, including dates in that position.
  • Names of your direct supervisors in each position held at the employer.
  • Internal complaints, including dates, subject matter and dates of responses.
  • Written Discipline issued by the Employer.
  • Evidence of any warning, written or verbal, whether formal or informal.

Obtain Personnel File and Payroll Records:

You are entitled to receive a copy of your personnel file and payroll records from your employer for up to 3 years after you separate from employment.  In most cases, your attorney should do this at the outset of the case before you file a lawsuit.  See California Labor Code sections 226 and 1198.5.

Create a Cast of Characters:

This is a list of people centered around you at your workplace.  

Include your supervisor (name and title) and everyone upward in the chain of command that you interacted with during your workday.  If you have subordinate employees, include their names and positions as well.  Additionally, it is important to list the Human Resources staff and the names of the people who were involved in the retaliatory actions.  Often, it is difficult to determine exactly who was involved; starting the list is always helpful.

Medical Records:

Obtain all records related to any medical issues, injuries, or treatments for any physical or emotional injury you attribute to the workplace retaliation.

Document Post Termination Job Search (if applicable):

It is likely that your former employer will attempt to make the case that you should have been able to find comparable employment once you were terminated, and therefore your lost wages should be limited to a short period of time following your termination. It will help your case if you can document that you made a timely and thorough effort to find a similar job.

As a plaintiff in a workplace harassment or wrongful termination lawsuit, you have a responsibility to mitigate your own damages by seeking comparable employment.  Save your emails and make notes of any time spent interviewing or searching for a new job.  You may be required to give the reason you declined any job offer.

How Long Do I Have to File a Lawsuit for California Workplace Harassment?

If you believe that your employment rights have been violated, it’s important not to wait to file a lawsuit. There are several reasons for this. 

First, there are legal deadlines, known as statutes of limitations, that limit the amount of time you have to file a claim after the date you were terminated. If you wait too long, you may lose the ability to pursue legal action altogether. 

The statute of limitations for a claim for Wrongful Termination due to harassment in Violation of Public Policy, as discussed above, is two (2) years in California.  See California Code of Civil Procedure section 335.1. 

A claim for breach of contract has a two (2) year limitation period if the contract is oral; a claim for breach of contract based upon a written contract has a four (4) year statute of limitations. 

A claim for discrimination, harassment or retaliation under the California Fair Employment and Housing Act has a two-part statute of limitations: a terminated employee must first obtain a “Right to Sue” letter from the California Civil Rights Department (formerly the DFEH) within three (3) years of the adverse employment action (i.e. termination, demotion, harassing conduct, etc.); the employee has one (1) year to file a civil lawsuit in court from the date of the Right to Sue letter. 

Second, waiting can give the employer time to destroy, discard or delete important evidence such as emails, text messages and other written or electronic documents, making it more difficult to prove your case. 

Third, the longer you wait, the harder it may be to remember important details and find witnesses who can support your claim. 

Finally, the emotional toll of workplace discrimination or harassment can take a significant toll on your well-being, and taking action sooner rather than later can help you start to move on and regain control of your life.

In short, if you believe your employment rights have been violated, it’s important to consult with an experienced employment attorney as soon as possible to discuss your options and protect your rights.

Contact The Ruggles Law Firm and get the process started with your free confidential consultation.

Recoverable Damages from a Workplace Harassment Lawsuit

In California, the damages that may be recovered in a successful workplace harassment lawsuit can vary depending on the circumstances of the case. Generally, an employee who has been illegally retaliated against at work may be entitled to recover the following types of damages:

Lost Wages and Benefits: 

These include any income the employee lost as a result of the termination, as well as the value of any benefits, such as health insurance, that were lost. In most cases, this will be the most significant component for recoverable damages.

There are several factors that can increase or decrease the claim for lost wages in a California lawsuit, including:

Length of absence from work

The longer a person is unable to work due to their injuries, the greater their lost wages will be.

Nature of the injuries: If the injuries sustained by the plaintiff are severe, they may require more time off work or even prevent them from returning to work altogether.

Fringe benefits and perks

 The plaintiff’s fringe benefits and perks, such as health insurance, retirement benefits, and bonuses, will also be considered when calculating lost wages.

Overtime and bonuses: If the plaintiff regularly worked overtime or received bonuses, their lost wages will be higher.

Future earning potential: If the plaintiff’s injuries will impact their future earning potential, such as preventing them from pursuing a promotion or earning a higher salary, their lost wages will be higher

Age and occupation of the plaintiff

If the plaintiff is young and has a long career ahead of them, their lost wages will be higher than if they are close to retirement age. Similarly, if the plaintiff has a high-paying job, their lost wages will be higher than if they have a lower-paying job.

Mitigation (i.e. your responsibility to find new comparable work) will be a major factor limiting damages for the young person, but less important for an older person close to retirement because it’s reasonable to assume the young person can get a new job but a 60 year old is facing a much tougher market.

Emotional Distress

If the harrassment caused the employee significant emotional distress, they may be entitled to recover damages for the resulting pain and suffering.  There are two primary types of emotional distress: garden variety vs. non-garden variety.  

Garden variety distress

Garden variety distress: peaks at or immediately after the time of your termination and gets better in a matter of days or weeks.

Non-garden variety distress

Non-garden variety distress: this type goes up over time and does not get better. For instance, you are losing weight and may need counseling or hospitalization. This type is more unusual and will require extensive work to prove.

Other Damages

Attorneys' fees and costs

If the employee prevails in the lawsuit, they may also be entitled to recover their attorneys’ fees and other costs associated with the litigation.

Punitive damages

In cases where the employer’s conduct was particularly egregious, the employee may be entitled to recover punitive damages, which are intended to punish the employer and deter similar conduct in the future.

California Civil Code Section 3294 outlines the conditions for awarding punitive damages in a civil lawsuit, which can be granted when the defendant’s conduct was willful, intentional, or malicious and caused harm to the plaintiff. 

In addition, the law allows for punitive damages to be awarded when the wrongful conduct was carried out by a managing agent, acting within the scope of their employment, which means the company or employer may also be held liable. A managing agent is defined as someone who exercises substantial control over the defendant’s business operations or has a significant role in managing the defendant’s affairs. 

The amount of punitive damages awarded is typically limited to a multiple of the actual damages suffered by the plaintiff.

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The Ruggles Law Firm Serves Many Cities in Northern California and Beyond

At the Ruggles Law Firm, we proudly extend our employment law services to all regions across California. If you believe you have faced injustice at the hands of your employer or have been a victim of workplace harassment, we are dedicated to assisting you in seeking justice. Reach out to us today and allow Matt Ruggles to provide you with a complimentary evaluation of your potential claim.


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