Legal Question in Sexual Harassment in California

Re: What Should Be Done Now?

Have HER contact an attorney to discuss the situation and whatever provable facts, evidence and witnesses she may have. IF she has enough credible evidence to support her allegations, then she can file a claim with the DFEH and file suit as appropriate. Feel free to have her contact me, I've been doing these cases for over 20 years.

Re: What Should Be Done Now?

I'm not sure what paperwork you're talking about. All the employer needed to know was that your friend was sexually harassed, the name of the harasser, and the identity of witnesses who could corroborate some or all of that information. The employer was obligated by law to conduct a reasonable investigation of the charges once it knew of the allegations. Your friend still may file a claim (with the help of an attorney, perhaps) with the California Dept. of Fair Employment and Housing, and eventually file a lawsuit.

Re: What Should Be Done Now?

As stated above, your friend does need to file her claim. She has two choices: file with the California DFEH, or with the federal EEOC. She can not file with both.

All things being equal, she should definitely file with the EEOC. The EEOC has more resources to handle claims, and its investigations are more thorough. There is a good chance that the DFEH will just give your friend a right-to-sue letter.

The only possible advantage in filing with the DFEH is if your friend suffered harassment more than 300 days prior to the date of filing. The statute of limitations to file with the DFEH is one full year, but the statute of limitations to file with the EEOC is only 300 days.

One other possible advantage is if your friend was harassed on the basis of sexual orientation. California law protects sexual orientation, but the federal laws do not.

Turning to the specifics of this case, I'm not sure what role the attorney had. To make a complaint of sexual harassment, there is no special form or way to do it, other than to inform a supervisor or other manager. This can be done on paper, in a conversation, even on a piece of paper written in cray-on.

If she was terminated because she filed the claim, then she also has a case for retaliation -- an entirely separate violation, in addition to the sex harassment claim.

To establish that she was sexually harassed, it is not necessary to prove that other people were also sexually harassed. It may help to show that the workplace was somehow out of control, or that there was a hostile work environment. But all she needs is evidence to show that she herself was harassed.

Keep in mind, too, that even if there is insufficient proof to show sex harassment (like, if there were no witnesses and the harasser denies it), she can STILL prevail on the retaliation claim.

But again, she must file with the EEOC or the DFEH. If she can file within 300 days of the harassment (or 300 days of the retaliation), she would be better served by going to the EEOC.

As to whether to hire an attorney, there are pro's and con's. If she files with the EEOC, they might be able to settle the case for her. If she's brought an attorney into the mix, that attorney may get paid for doing essentially nothing. Also, the EEOC, in the course of an investigation, is able to demand certain information (because it is a federal agency) that an attorney will not be able to get, or will have a difficult time getting (costing your friend more $).

If the EEOC finds that discrimination occurred, they might even sue the employer for your friend -- costing her nothing. No fees to share with an attorney.

If you have additional questions, feel free to contact me.