Workplace Sexual Harassment in California: Lawsuit Fundamentals for Victims – Part 3

LOS ANGELES, CALIFORNIA (10/26/15) – After (a) documenting the instances of sexual harassment, (b) asking the offender(s) to stop, and (c) involving your employer and not receiving an acceptable resolution, (d) your next step is to file a claim with the proper Federal and/or state agencies. If you missed Part 1 of this series, click here.  If you missed Part 2 of this series, click here.

At this point, if you don’t already have one, you should be talking to sexual harassment attorneys about your potential case. As I mentioned in Parts 1 and 2, you definitely need a sexual harassment attorney specifically experienced with these matters in the State of California.

A California sexual harassment attorney is essential because making a claim regarding sexual harassment to a governmental agency can be a confusing thing and your attorney will be able to guide you past any mistakes that may harm your case. A sexual harassment attorney will also be frank about what chances you have of winning your case and if the assessment is negative, you should try at least one other attorney. If both of them explain the same or similar drawbacks to your case that most likely will cause you not to win, it’s up to you to accept their opinions or keep trying.

Be wary of recommendations from friends and relatives! Sometimes if people know you are looking for a lawyer, many will think they have the greatest attorney in the world or one of their relatives is an attorney and they will try to talk you into using their lawyer. In many cases, people are clueless and they will refer you to a lawyer that mainly practices divorce, real estate, criminal law — anything but — sexual harassment! Then if you say you need a California sexual harassment attorney, they will say, “Oh my attorney does everything — he’s that good!” Stay far away from these recommendations! Do not bother with someone’s recommendation unless it is for an employment law attorney who knows California employment law inside and out and has already worked on several cases involving sexual harassment. The best recommendation of all is one from a former client whose sexual harassment attorney helped them win their case.

The sexual harassment attorneys with the most experience are located in or near major cities, like Los Angeles, California. If you are close enough to use a sexual harassment lawyer in this location and they take cases in your area, you should definitely consider a Los Angeles sexual harassment lawyer. Even if you are not close and it takes an hour or two to get there, remember you don’t have to go the sexual harassment attorney’s office on a regular basis at all. In many cases, you will never have to go to their office once you hire a sexual harassment attorney. So focus on quality rather than proximity. At least have an initial consultation if you think a Los Angeles sexual harassment attorney looks promising and see what you think.

When you get an appointment for an initial consultation, bring all of your documentation pertaining to the sexual harassment, your company employee handbook if you have one, and also bring contact information for any witnesses you may have. Be as thorough as possible when preparing to consult with a sexual harassment lawyer. If you have already involved your employer, give the sexual harassment attorney any documents you may have been given and a complete rundown of what happened and where you are in the process. If you go to the sexual harassment attorney before you approach your employer, if they take your case, they can guide you on what to do.

Here are some common questions regarding filing a claim with the agencies:

What agencies do I need to file a claim with if I am sexually harassed in California?

Federal: The Equal Employment Opportunity Commission (“EEOC”), which covers all U.S. States and the District of Columbia, including California.

State: The California Department of Fair Employment and Housing (“DFEH”), which covers only the State of California.

If you have a sexual harassment attorney, their office will help you take care of this. If you don’t have one yet, you have to take this step by yourself.

Why do I have to file a claim with at least one of these agencies before I can file a lawsuit?

Before filing a private lawsuit, you need to “exhaust all administrative remedies” by allowing a governmental agency to assess your case, potentially arbitrate with your employer, make a decision on whether they choose to litigate themselves, and, if not, issue you a “Right To Sue” letter or form, which allows you to file a private lawsuit. This is similar to being required to allow your employer a chance to remedy the situation, as discussed in Part 2.

So which do you file an initial claim with? Do you file a claim with both?

They are both very similar, but there are a few important differences. If you have a sexual harassment lawyer working on your case, they can explain which route to go that’s in your best interest. Examples where they have significant differences are statutes of limitations and the size of the employer (number of employees) that comes under their jurisdiction.

In California, if you make a claim to one of the agencies, they will file a claim on your behalf concurrently with the other agency. This is known as “cross-filing.”

What are the differences between the two and which differences can pertain to sexual harassment?

California DFEH’s Fair Employment and Housing Act (“FEHA”) are the codes that pertain to sexual harassment and are enforced by the DFEH.

The EEOC’s Title VII of the Civil Rights Act of 1964 (“Title VII”) is the law that pertains to sexual harassment and is enforced by the EEOC.

Differences in the state codes and Federal laws that can affect sexual harassment cases

Minimum number of employees before the regulations apply

Under the DFEH, in most instances, an employer must have at least five (5) employees. In terms of harassment, including sexual harassment, an employer only has to have one (1) employee for the DFEH to be able to enforce the codes.

Under the EEOC, an employer has to have at least fifteen (15) employees in order for it to be able to enforce Title VII laws.

Statute of limitations for filing a claim

The statute of limitations for DFEH is one (1) year and starts on the date of the last incident.

The statute of limitations for EEOC is 180 days from the incident of sexual harassment. This time period increases to 300 days if a claim has also been filed with DFEH. The only exception is for Federal employees. They must file a claim within 45 days.

The “Right to Sue” letter

The “Right to Sue” letter is what you and your sexual harassment attorney need to be able to file a private lawsuit in civil court.

The usual strategy is to request a “Right to Sue” letter immediately upon filing. The investigation period is very long for both these agencies. If you are represented by a sexual harassment attorney, you have to serve the Defendant within 60 days of obtaining a “Right to Sue” letter.

In California, when you request a “Right to Sue” letter with the EEOC, they will issue you a DFEH ‘Right to Sue Letter’ but will issue their own “Right to Sue” letter at the end of their investigation. When you file a claim with the DFEH, they will issue a “Right to Sue” letter at the conclusion of their investigation. At that point, they inform the EEOC and the EEOC issues their “Right to Sue” letter.

The statute of limitations for the EEOC for filing a private lawsuit in civil court is 90 days after you receive their “Right to Sue” letter. The statute of limitations for the DFEH is one (1) year after you receive their “Right to Sue” letter.

Now that you have (a) a history of what has been happening, (b) given your employer a chance to remedy the situation, and (c) have received a “Right to Sue” letter, Part 4, the final installment of this series, discusses what you can typically expect to experience as the Plaintiff in a sexual harassment case. Learning something about this is particularly important for people who have never been involved in a civil lawsuit before.

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