Building Air-Tight Workplace Sexual Harassment Cases

Updated September 22, 2025

California Sexual Harassment Litigation—What Wins in Court?

Sexual harassment in California workplaces is primarily regulated not by the Labor Code but by the Fair Employment and Housing Act (FEHA) in the California Government Code—most centrally Gov. Code § 12940(j) (harassment) and § 12940(k) (duty to prevent harassment).

The Labor Code still matters (especially for retaliation and whistleblowing), but FEHA is where the core harassment standards, employer liability rules, and remedies live.

Below is a plaintiff-side, litigation-focused deep dive: what statutes control, what recent California Supreme Court cases say (including whether a single incident can be enough), who’s liable and when, what evidence actually wins, whether a firing is required (it isn’t), and practical notes about damages and case selection.

1) The Statutes that Matter Most (for Employees)

A. The heart of it: FEHA (Government Code)

• Harassment itself: Gov. Code § 12940(j) makes harassment unlawful based on sex (and other protected classes), covering applicants, employees, interns, volunteers, and even contractors. It also makes individual harassers personally liable and sets employer liability rules for supervisors, coworkers, and non-employees. Findlaw
• Duty to prevent: § 12940(k) creates a separate cause of action for an employer’s failure to take all reasonable steps necessary to prevent and correct harassment, discrimination, or retaliation. This is often pled alongside the underlying harassment claim. Findlaw
• How courts must analyze harassment: § 12923 (enacted via SB 1300) instructs courts that harassment standards must be applied in a worker-protective way; that a plaintiff doesn’t have to prove their productivity suffered; that “stray remarks” can be part of the totality of the evidence; and that a single incident can be enough if severe. Findlaw
• Training & policies: § 12950.1 requires employers with ≥ 5 employees to give interactive sexual-harassment training (two hours for supervisors, one hour for nonsupervisors) and Title 2, CCR § 11023 requires written policies and prompt correction. These become highly relevant to the § 12940(k) “failure to prevent” claim and injunctive relief. Justia
• Limitations period & fees: California now provides three years to file an administrative charge with the Civil Rights Department (CRD) under Gov. Code §§ 12960/12965 (AB 9), and § 12965(b) authorizes attorney’s fees and costs to prevailing plaintiffs (asymmetric fee-shifting). Findlaw

B. Where the Labor Code still helps

• Whistleblowing/retaliation for reporting unlawful conduct (which can include reporting harassment or violations of FEHA policies): Labor Code § 1102.5. California Supreme Court guidance confirms a plaintiff-friendly burden-shifting standard. Findlaw
• Retaliation for asserting Labor Code rights (wage complaints, etc.): Labor Code § 98.6. Sometimes pled alongside FEHA retaliation when the employee engaged in wage-and-hour or other protected activity. Findlaw
• “General duty” to provide a safe workplace (helpful context for injunctive relief/theory of negligence per se alongside FEHA): Labor Code § 6400 (Cal/OSHA). Not a standalone harassment cause of action, but it underscores the employer’s duty to furnish a safe and healthful workplace. Justia

2) Employer Liability: Supervisors vs. Coworkers vs. Non-Employees

• Supervisors: Under FEHA, employers are strictly liable for a supervisor’s harassment—no “knew or should have known” defense. That’s why proving the harasser’s supervisory status (power to hire/fire/discipline/assign, etc.) matters so much; the Judicial Council’s CACI 2525 jury instruction tracks the “supervisor” definition. Justia
• Coworkers & non-employees (e.g., customers/vendors) : The employer is liable if it knew or should have known and failed to take immediate and appropriate corrective action. That’s why notice and the employer’s response quality and speed are central proof issues. Findlaw
• Separate “failure to prevent” claim: Even if a jury doubts some incidents, plaintiffs can win under § 12940(k) by showing the employer lacked adequate policies/training or failed to respond reasonably and promptly once on notice. CACI 2527 lays out the elements. Justia

3) What Conduct Is Enough? “Severe or Pervasive,” Clarified

Historically, courts asked whether conduct was “severe or pervasive” enough to alter conditions of employment. California Supreme Court cases supplied bookends:

• Lyle v. Warner Bros. (2006): in a “writers’ room” for Friends, lewd jokes about sex generally—not directed at or about the plaintiff—were not enough on those facts. It reaffirmed the “severe or pervasive” standard but required a fact-specific inquiry. Stanford
• Miller v. Dept. of Corrections (2005): widespread sexual favoritism (supervisor’s affairs with subordinates) can create a hostile environment by sending the demeaning message that women are “sexual playthings.” Employment Law Blog
• Roby v. McKesson (2009): harassment can include workplace conduct that communicates hostile messages (e.g., shunning, demeaning acts) even when overlapping with personnel management; the court reinstated a harassment verdict and addressed damages allocation. Stanford

Modern update—“one incident can be enough”:

In Bailey v. San Francisco District Attorney’s Office (2024), the California Supreme Court held that a single, highly offensive epithet by a coworker can be actionable by itself under FEHA, when sufficiently severe and considered under the totality of the circumstances—expressly harmonizing with § 12923. This decision is crucial at summary judgment and trial. Justia

What this means for sexual harassment claims: Plaintiffs do not need to show months of conduct or a demotion/firing. A single severe overture or assault can satisfy FEHA (and § 12923 discourages courts from slicing cases away on summary judgment based on “not pervasive enough”). Findlaw

4) Retaliation—Even If the Harassment Claim Is Disputed

Employees often win the retaliation piece where they reported good-faith concerns and then faced adverse actions (discipline, schedule changes, exclusion, termination). Two pillars:

• FEHA retaliation: Gov. Code § 12940(h) (paired with Yanowitz v. L’Oreal (2005), which recognized a broad range of adverse actions and protected complaints about discriminatory directives). Findlaw
• Labor Code § 1102.5: protects disclosures/refusals to participate in unlawful practices. California Supreme Court guidance confirms a favorable analysis for whistleblowers. Use this alongside FEHA when the report concerns illegal conduct/policy violations. Findlaw

5) Evidence that Wins (From the Employee’s Side)

A. Prove what happened, who knew, and how the employer responded

1. Contemporaneous records
• Time-stamped emails/texts/Slack/Teams messages describing incidents; calendar entries; journal notes; saved voicemails.
• Screenshots of messages and social media (with full headers/metadata where possible) to defeat “he-said/she-said.”
• Keep the original devices if possible; avoid altering threads.
2. Notice to the employer (critical for coworker/customer cases)
• HR complaint intake, emails to supervisor/HR, incident forms, and proof of delivery; any CRD complaint you filed; employer’s investigation notes and witnesses. Regulations require prompt, thorough action; if they dragged their feet or conducted a perfunctory inquiry, that supports § 12940(k) . CRD
3. Witnesses & “me too” evidence
• Coworkers who saw/heard harassment; people who observed changes in your demeanor; other employees targeted by the same perpetrator or who experienced sexual favoritism (Miller). Findlaw
4. Pattern & context
• Prior complaints against the same harasser; lack of training; missing or outdated policy (§ 12950.1/CRD guidance); evidence of stray remarks by decisionmakers (admissible under § 12923). CRD
5. Damages proof
• Economic: wage loss (back pay/front pay), job searches, medical expenses.
• Non-economic: therapy notes, prescriptions, journals, third-party corroboration (family/friends), and, where helpful, a treating or retained mental-health expert (often essential to maximize distress damages in employment cases). Plaintiff Magazine

B. Special focus: Supervisor vs. Coworker

• If the harasser was a supervisor, nail down the supervisor status (hiring/firing/discipline authority, ability to direct work significantly). If you prove this, the employer’s strict liability makes the case posture stronger. Use org charts, job descriptions, emails showing authority, and CACI 2525 factors. Justia
• If the harasser was a coworker or customer, prove notice and failure to act: when you reported, to whom, exactly what you said, their responses, and how long it took them to separate, discipline, or train. Employers must take “immediate and appropriate corrective action.” Findlaw

C. “One incident” cases after Bailey

If the conduct is severe (e.g., a coerced sexual touching/assault, highly degrading explicit propositions by a person with power, etc.), build a record showing: (1) the content of the act; (2) its context (power differential, public humiliation); (3) after-effects (fear, avoidance, therapy, work impact); and (4) the employer’s response. Bailey’s logic supports sending such cases to juries rather than having them dismissed. California Courts

6) Do You Have to Be Fired to Bring a Harassment Claim?

No. A harassment claim under FEHA does not require termination, demotion, or other “ultimate” employment actions. A firing (or constructive discharge) can create additional claims—FEHA retaliation and potentially wrongful termination in violation of public policy—but harassment is actionable regardless of discharge. Cases like Yanowitz also teach that “adverse actions” for retaliation are broader than terminations and can include a pattern of retaliatory measures. Findlaw

7) Remedies: Why FEHA Is Powerful (and Why Plaintiffs’ Lawyers Take These Cases)

• Compensatory damages: back pay/front pay, emotional distress.
• Punitive damages (if malice, oppression, or fraud—e.g., conscious disregard by managing agents).
• Attorney’s fees and costs: § 12965(b) authorizes fee awards for prevailing plaintiffs (defendants only get fees if the case was frivolous). This fee-shifting is why plaintiffs’ firms can take strong cases even when wage loss is small. Advocate Magazine
• No caps on compensatory or punitive damages under FEHA (unlike Title VII’s statutory caps), which significantly changes settlement posture. Plaintiff Magazine
• Injunctive relief: policy changes, training, discipline requirements—particularly where § 12940(k) violations are proven. Cornell

“What are the minimal damages to make it worth an employment attorney’s time?”

There is no statutory “minimum.” In practice, plaintiffs’ firms consider:

• Merits strength (liability and proof, especially supervisor status or clear notice/failure to act),
• Quality of evidence (documentation/witnesses),
• Venue and jury pool, and
• Recoverability (employer’s solvency and insurance).

Because FEHA provides fee-shifting and uncapped distress/punitive damages, many attorneys will seriously evaluate cases with modest wage loss if the facts are strong (e.g., clear supervisor harassment; a single severe incident under Bailey; or glaring failure-to-prevent evidence). Still, as a practical matter, firms often look for either (a) credible emotional-distress harm supported by treatment records and witnesses, (b) documented retaliation (emails/texts) after a report, or (c) multiple victims—any of which can move expected value upward. (Standards and appetite vary firm-to-firm; fee-shifting under § 12965(b) is the key enabling factor.) Findlaw

8) Case Snapshots You Can Use in Demand Letters and Briefs

1. Miller v. Department of Corrections (Cal. 2005)

Holding: Widespread sexual favoritism by a supervisor can create a hostile environment for others.
Use it for: hostile environment theories where a supervisor’s romantic favoritism demeans others’ standing; policy failures. Findlaw

2. Lyle v. Warner Bros. (Cal. 2006)

Holding: Lewd “creative workplace” banter not specifically about or directed to the plaintiff and tied to the show’s content was insufficient on those facts.
Use it for: distinguishing defense attempts to cloak harassment as “creative” or “jokes”; shows the fact-intensive nature of “severe or pervasive.” Justia

3. Roby v. McKesson (Cal. 2009)

Holding: Harassment includes demeaning workplace conduct (e.g., ostracism) that communicates hostility; don’t compartmentalize all evidence as “personnel management.”
Use it for: arguing the totality of conduct and saving harassment verdicts from being minimized as “just management.” Sco Cal

4. Yanowitz v. L’Oreal (Cal. 2005)

Holding: Broad view of protected activity and adverse actions in retaliation under FEHA.
Use it for: robust retaliation claims when a worker objects to discriminatory/harassing directives and then suffers a pattern of reprisals. Findlaw

5. Bailey v. San Francisco District Attorney’s Office (Cal. 2024)

Holding: A single severe incident (e.g., an unambiguous slur by a coworker) can create a hostile environment under FEHA; courts must look at the totality and § 12923.
Use it for: defeating summary judgment in “one-incident” cases and reframing “severity” arguments. Justia

9) Building the Record: Step-by-Step Playbook for Employees

1. Report promptly, in writing (email HR and a manager; keep copies). If you’re uncomfortable reporting to the direct supervisor (the harasser), report to another manager or HR. This preserves notice. CRD
2. Request an investigation and interim protections (no contact, schedule changes, paid leave if needed). Employers must take immediate and appropriate corrective action. Document what they did and when. Cornell
3. Collect and preserve evidence (messages, photos, calendars, witness names/contact info, medical/therapy records). Inform counsel quickly so a preservation letter can issue.
4. Ask for your personnel file (California law allows inspection); look for prior complaints, performance reviews, or retaliatory papering.
5. If retaliation begins, escalate: add a FEHA retaliation complaint and consider Labor Code § 1102.5 if you disclosed violations or refused to engage in illegal acts. Findlaw
6. Diary ongoing effects (sleep loss, anxiety, physical symptoms; missed work) to support emotional distress damages. Plaintiff Magazine
7. Administrative step: file a CRD charge within three years (AB 9); request an immediate right-to-sue where appropriate. Orrick

10) Common Defense Themes—and Plaintiff Rebuttals

Bailey + § 12923 undercut this. Show severity, context, and after-effects. California Courts

Lyle requires fact-specific analysis; if conduct was about the plaintiff (appearance, propositions, touching), or involved sexual favoritism undermining others (Miller), the defense framing fails. Findlaw

Use CRD guidance and CCR § 11023 to show the response wasn’t prompt, thorough, or effective (e.g., no interviews, no separation, no discipline, no follow-up). That supports § 12940(k) . Cornell

FEHA remedies include emotional distress, punitive damages, and attorney’s fees—no caps. Wage loss is not required for a strong case. Plaintiff Magazine

11) FAQs

Q: Do I have to quit or be fired to bring a harassment claim?
A: No. Harassment is actionable without discharge. A firing (or constructive discharge) may add wrongful termination/retaliation claims, but is not required. Yanowitz confirms broad retaliation protection for objecting to unlawful directives even without termination. Findlaw

Q: How fast must my employer act after I report?
A: They must take immediate and appropriate corrective action—prompt investigation, interim safety steps, and effective remedies. Delays or superficial steps can support failure-to-prevent liability. Cornell

Q: What if the harasser is my supervisor?
A: The employer is strictly liable for supervisor harassment. Proving supervisory authority (per CACI 2525) is case-dispositive on liability. Justia

Q: Is one incident really enough?
A: Yes, if severe. Bailey squarely answers this for California. California Courts

Q: What is a “worthwhile” case?
A: There’s no bright-line “minimum.” Strong liability proof (supervisor harassment or clear notice/failure to act), credible distress evidence, and fee-shifting under § 12965(b) can make cases viable even with limited wage loss. Findlaw

12) Quick Statute & Instruction References (for your pleadings and MSJs)

13) Pull-Ready Case Summaries (for letters, briefs, or mediations)

• Bailey v. S.F. District Attorney’s Office, 16 Cal.5th ___ (2024): One severe incident (coworker slur) can be actionable harassment; courts must assess the totality of circumstances consistent with § 12923. Justia
• Miller v. Dept. of Corrections, 36 Cal.4th 446 (2005): Sexual favoritism by a supervisor—when widespread—creates a hostile environment for others. Findlaw
• Lyle v. Warner Bros., 38 Cal.4th 264 (2006): “Creative” banter not directed at the plaintiff was insufficient on those facts—fact-intensive inquiry governs. Sco Cal
• Roby v. McKesson, 47 Cal.4th 686 (2009): Harassment includes demeaning workplace conduct that communicates hostility; don’t silo evidence as “personnel actions.” Sco Cal
• Yanowitz v. L’Oreal, 36 Cal.4th 1028 (2005): Broad retaliation protection and “adverse action” concept under FEHA. Findlaw

14) Bottom Line for Employees (and for your demand/complaint drafting)

1. File under FEHA for the harassment claim; add § 12940(k) (failure to prevent) and retaliation under both FEHA and Labor Code § 1102.5 if you reported misconduct. Findlaw
2. You do not need to be fired. A termination simply adds separate claims/ damages (e.g., wrongful termination, retaliation). Findlaw
3. Evidence wins: contemporaneous writings, notice to the employer, investigative gaps, corroborating witnesses, and credible distress proof. Use Bailey and § 12923 to defeat “one-off” minimization. California Courts
4. Damages can be significant (no caps) and fee-shifting makes cases viable even with modest wage loss—so long as liability is strong. Plaintiff Magazine
Citations (key sources)
• Statutes / regs: Gov. Code §§ 12940, 12923, 12950.1, 12965; 2 CCR § 11023; Labor Code §§ 1102.5, 98.6, 6400. Findlaw
• CRD employer guidance (harassment prevention): 2025 CRD Guide; CRD Training FAQ. CRD
• CACI jury instructions: 2521A, 2525, 2527, 4603. Justia
• Cases: Bailey (2024); Miller (2005); Lyle (2006); Roby (2009); Yanowitz (2005). California Courts

If you need workplace harassment litigation, please call Setyan Law at (213)-618-3655. Free consultation.



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What Should I Do If My Workplace is Unsafe?Which California Labor Codes Govern Constructive Discharge Violations?Collecting Evidence in a Workplace Discrimination Lawsuit