How to Report Sexual Harassment in California
If you are a victim of sexual assault, to the extent applicable, please:
- Call 911 or report the incident to local police.
- Seek a restraining order.
- See a healthcare provider to receive medical attention.
- Call a crisis hotline (800)-656-HOPE (4673).
Depending on the urgency and severity of the situation, our team at the Employee Rights Attorney Group may also offer you additional referrals and resources for immediate relief.
Why You Should Report Sexual Harassment
Too often employees are too afraid to come forward with a complaint of sexual harassment. However, not coming forward may be used against you. Below are some of the reasons why you should come forward.
1. In some cases, an employee’s natural feelings of embarrassment, humiliation, or shame may provide a sufficient excuse for delay in reporting sexual harassment. However, generally a victim of sexual harassment is expected to use an employer’s anti-harassment policies and complaint procedures. There are situations where an employee is either excused or unable to utilize internal policies to obtain relief. Assuming, however, those exceptions do not apply, an employer may argue that the employee failed to use the employer’s procedures that would have prevented the harm the employee suffered. This is known as the “avoidable consequences defense.”
2. While an employer is strictly liable for a supervisor’s sexual harassment, in cases where the harassment is by a co-worker you have to show that the employer either knew or should have known of the harassment. Sometimes the sexual harassment is so out in the open or widespread that an employer has constructive notice. Sexual harassment can also be more covert. Reporting the harassment is evidence of notice to the employer.
3. Sexual harassment is illegal if it is unwelcome. Your sexual harassment complaint may also be used to show that the harassment was unwelcome and that you found it offensive and bothersome and to rebut harasser’s claim that you were a willing participant.
If you suffer in silence, the harassment and/or retaliation for refusing advances may become worse and cause your work performance to suffer. Harasser/Employer may use poor performance as an excuse to get rid of you. Your mental and/or physical health may also suffer, forcing you out of your job. An employer may attack your credibility if you report sexual harassment for the first time after loss of employment. This does not mean that the sexual harassment did not happen; employers make every effort to avoid liability and often attack the victim. By making a contemporaneous report, you are protecting your credibility and professional reputation.
Speak to a Sexual Harassment Lawyer Before Making a Complaint
Depending on your industry or situation, some steps may not be applicable or feasible. Speak to a sexual harassment attorney sensitive to your situation and your individual circumstances. During a free and confidential consultation, an attorney may hear your story and guide you on how to proceed.
Steps to Take to Report Sexual Harassment in the Workplace
Internal Policies and Procedures in the Handbook
Employer’s Handbook or complaint procedure may include forms to use, identify individuals to speak to, and other steps to take. Keep in mind, California law requires an employer to respond to formal and informal complaints and treat both verbal and written complaints with the same seriousness. So long as you make an objectively reasonable effort to report the harassment, you may not have to follow any burdensome requirements in the Handbook, etc.
It is advisable, however, regardless of the process set forth by the employer, for an employee to make a written complaint. While a written complaint is not required under the law, even the EEOC recognizes that a written complaint may prevent an employer from dishonestly claiming that no notice or complaint was received. Keep a record and copies of all complaints made.
Alternatives to Internal Policies and Procedures if You are Too Afraid
Employers often have beautifully written policies that pay lip service to civil rights and equal protection under the law. But, in many workplaces, these policies are just words on paper that are not actually followed or enforced. Employers purchase Handbooks with anti-discrimination policies as part of a superficial effort to comply with California law obligating employers to prevent harassment. According to the California Supreme Court,
If an employer has failed to investigate harassment complaints, [or] act on findings of harassment, or, worse still, [has] retaliated against complainants, future victims will have a strong argument that the policy and grievance procedure did not provide a ‘reasonable avenue’ for their complaints
Whether your effort to not use all the internal policies and procedures was reasonable may be evaluated in light of these factors. However, even where using employer’s purported remedial measures appears futile, we recommend that you still give notice of the sexual harassment.
Case Example: After Employee complained to Manager that a customer explicitly sexually propositioned him, Manager directed Employee to return to the customer and complete the pedicure. The customer continued to harass Employee and caused Employee to feel “absolutely horrible” and “uncomfortable.” A reasonable jury could decide Manager condoned the customer’s conduct and conveyed that sexual harassment would be tolerated in the salon because Manager took no action to stop it.
Under the law, you are not restricted to complain to the individuals identified in the anti-harassment policy. Report to an individual with authority, such as a supervisor and continue to report up the chain of command. There may be a supervisor that you trust and/or have a better relationship with. If you report for e.g., to a lower level Human Resources representative, cc’ their supervisor as well. It may be of benefit to you to take the extra step of reporting up the chain of command leaving no room for the employer to argue that it was unaware of the situation.
What to Include in Your Complaint
You can be direct in your complaint, “My supervisor is sexually harassing me and after I rejected him, he began retaliating against me by taking away my assignments, etc.”
However, an employer is not excused for not following up on a complaint or can claim ignorance because you did not use legal terms or buzzwords when opposing discrimination or sexual harassment. The court will find opposing activity if the employee’s comments, when read in their totality, oppose harassment. Employees often complain in more colloquial terms describing the behavior at issue.
It is not difficult to envision circumstances in which a subordinate employee may wish to avoid directly confronting a supervisor or a co-worker with a charge of discrimination and the employee engages in subtler or more indirect means in order to avoid furthering or engaging in discriminatory conduct. In such circumstances the thrust of inartful, subtle, or circumspect remarks nevertheless may be perfectly clear to the employer. There is no evidence that Congress intended to protect only the impudent or articulate. The relevant question is not whether a formal accusation of sexual harassment is made but whether the employee’s communications to the employer sufficiently convey the employee’s reasonable concerns that the employer has acted or is acting in an unlawful manner.
With that said, the direct approach undermines the employer’s disingenuous claims that it did not understand your complaint or that it was too vague to constitute sufficient notice.
Submit a Complaint to a Civil Rights Agency
You can also file a Complaint with the Department of Fair Employment and Housing (“DFEH”) or the Equal Employment Opportunity Commission (“EEOC”). You should have a sexual harassment lawyer assist you in filing your Complaint since this is a more formal process.
We hope that this information was helpful to you. If you have questions or concerns or desire guidance tailored to you, please reach out to Employee Rights Attorney Group for a free and confidential consultation. We hope to support you during this difficult time and offer resources and information to empower you.
