California and federal employment laws both prohibit sexual harassment in the workplace. If you have the right to be free from harassment, certainly you have the right to report concerning conduct to your employer, right? If you complain of improper conduct at work, you should expect your employer to take the necessary action to stop the harassment. You might expect the harasser to face discipline or even termination – but what happens when your employer instead fires you for reporting the issue?
Under the law, employers cannot terminate or otherwise retaliate against employees for raising concerns about possible sexual harassment. However, many employers engage in wrongful termination of employees who experienced harassment in these situations. If this happens to you, your employer has violated your rights, and you have legal options.
Always seek a no-cost case evaluation with an employment attorney who handles sexual harassment cases in California. The right lawyer can assess your best options to seek legal relief and hold your employer liable for their unlawful conduct.
Unlawful retaliation for reporting sexual harassment
The law not only gives employees the right to be free from sexual harassment, but it also gives them the right to be free from unlawful retaliation. Retaliation occurs when an employee rightfully raises concerns about or otherwise reports possible sexual harassment or other wrongful conduct at work.
In addition to having the right to report sexual harassment, employees also have the right to do any of the following without fear of retaliation:
- Refuse sexual advances by a boss or someone else with authority over your job
- Intervene to try to protect someone else at work from sexual harassment
- Complain to your employer that someone else is experiencing sexual harassment
- Provide honest answers during an internal investigation into possible sexual harassment
- Participate as an honest witness in a sexual harassment investigation or lawsuit
- Discuss concerns about sexual harassment with a supervisor or another individual with authority in the workplace
- Taking qualified time off due to sexual harassment or an investigation
Reporting sexual harassment is a protected activity under the law, and you should have the ability to do so without worrying about your employer’s reaction. In fact, the law requires employers to fully investigate complaints of sexual harassment and take them seriously. When an employer fires the complainant, it violates the law and the employee’s rights.
Identifying unlawful retaliation
Retaliation can involve any adverse action against an employee for exercising a legal right.
While wrongful termination is the most drastic form of unlawful retaliation, it can also involve:
- Additional harassment or abuse at work due to the complaint
- Reprimands or disciplinary action against you
- Giving poor performance reviews without justification
- Demotions or pay reduction
- Reduction of hours or shifts
- Denial of a deserved promotion or pay increase
- Transfer to a less desirable position, location, or work assignment
- Spreading false rumors about you to tarnish your reputation
- Stating you will receive unfavorable references for future employment
- Subjecting you to higher standards and scrutiny than others
- Otherwise creating a hostile or uncomfortable work environment for you
- Denying you work benefits that others receive
Of course, having an employer fire you is a dramatic form of retaliation, but it is far from the only type of retaliation that employees experience. While your employer should protect you and your rights, employers might instead make your life difficult and protect the accused harasser. This might be due to camaraderie with the accused, to prevent reputational damage for the company, or other reasons.
No matter why your employer retaliates against you, it is unlawful, and they should be responsible for violating your employment law rights.
You have the right to report sexual harassment
Title VII of the Civil Rights Act of 1964 prohibits sexual harassment at work on the federal level, while the California Fair Employment and Housing Act (FEHA) prohibits such harassment for employees in the state. Title VII applies to employers with 15 or more employees, and FEHA applies to California companies with five or more employees.
Both laws also legally entitle employees to report suspected sexual harassment they experience or witness. Even if your employer finds that there was no harassment, you have protections as long as your complaint was in good faith.
When you report sexual harassment concerns, you should provide as much concrete information and evidence as possible.
This can include:
- The identity of the harasser
- Where and when the harassment has happened
- A description of what the harassment entailed
- Whether the harassment has affected your performance at work (to avoid performance-based retaliation)
When you give your employer such information, they must investigate whether the harassment occurred. Suppose the human resources department or another internal investigation agrees that there was sexual harassment. In that case, the employer must act to correct the situation and prevent a hostile work environment from persisting.
Most importantly, your employer may not fire you for your complaint of sexual harassment. Some companies believe that employees who raise such issues create difficulty in the workplace, but it is the harasser who is causing the problems. An employer might also want to protect someone if they are an integral employee of the company, though this is no excuse to cover up sexual harassment and retaliate against employees.
If you reported sexual harassment and got fired or experienced other adverse action at work, you need to speak with an employment attorney right away. Navigating the legal system can be difficult, and you are already under the stress of sexual harassment and losing your job. You need a legal professional to evaluate the best course of action and guide you through the process of standing up for your rights under the law.
Legal options after wrongful termination
There are many different reasons for the wrongful termination of California employees, including termination in retaliation for lawfully complaining of possible sexual harassment. If this happens, you might file a wrongful termination lawsuit against your employer, alleging unlawful retaliation in violation of the law.
You should have an employment attorney review your situation and determine the best way to proceed. If you file a lawsuit under Title VII, you will have to follow federal law and court procedures. Lawsuits under FEHA will follow California state laws and procedures. Some cases require getting permission from a state or federal agency before you can file a lawsuit, such as the California Civil Rights Department or the federal Equal Employment Opportunity Commission (EEOC).
There are also time limits to consider, which are called statutes of limitations. The applicable time limit in a wrongful termination case depends on the basis of the claim. Usually, employees have three years to file claims arising from FEHA in California.
Determining whether you have a case
When you meet with an employment lawyer, they will review all the information and evidence you can provide to determine whether you have a claim for wrongful termination.
You can provide as much evidence as possible, including:
- Emails, texts, or other messages
- Performance reviews and your employment file
- Notes from verbal communications you had with your employer or HR
- The notice of your firing (if your termination happened in person, immediately write down as many details as possible about what your employer said)
- Contact information of anyone who witnessed the sexual harassment, your complaints, or your termination
- Your employer’s handbook for employees
- Any offer letters, employment contracts, or other documentation regarding your employment relationship
- Pay statements and records showing hours you worked
- Communications with past coworkers about your termination
After your termination, you likely cannot access your work email or computer, so always keep all of this information in a personal account or cloud storage.
Your lawyer can evaluate all of the information you provide and advise whether your employer engaged in unlawful retaliation. They will discuss how representation will work, including the fees for the legal services and how you will pay them. Often, plaintiffs in employment matters pay nothing out of pocket, and they might have all their attorney’s fees covered as part of the settlement or court judgment.
Negotiations or Litigation
Your employment attorney can try to negotiate with your employer to avoid the need for formal legal action. Often, employers do not realize the consequences of retaliation and wrongful termination, and they might be willing to resolve the matter without going to court.
Your lawyer can determine whether your employer will admit the unlawful retaliation and offer to make it right. This should include compensation for your losses, possible reinstatement to your job (if you wish), and other relief that is available through litigation. Your attorney will know what a favorable settlement looks like and can advise you whether to accept your former employer’s offer or not.
If negotiation is a dead end, your attorney can get any necessary authority to file a lawsuit and prepare the paperwork. They will file your formal complaint in the proper court and begin the litigation process.
Proving unlawful retaliation
Proving that your employer engaged in unlawful retaliation and wrongful termination can be more challenging than you think. You might assume it is obvious that your employer violated the law, but the court will require sufficient evidence to prove your claims. Judges and juries will not simply accept your version of the story.
A skilled employment lawyer will know how to build as persuasive a case as possible.
They can gather evidence to prove:
- You engaged in a protected activity, which is complaining of sexual harassment
- Your employer took adverse action against you, which is your termination
- The termination was due to your protected activity
You can expect your former employer to try to avoid liability. They might assert that there were other reasons for your termination that had nothing to do with your sexual harassment complaint. Attorneys see such pretextual reasons often, as they are a common defense in retaliation cases. Your lawyer can work on challenging your employer’s pretextual reason and demonstrating the true reason for your firing – your sexual harassment complaint.
You can only obtain legal relief for unlawful retaliation by proving your claim, and this is more challenging than most people imagine. You must follow court procedures for discovery and meet your burden of proof, all of which require the skill of an experienced employment litigator.
The objective of a lawsuit is to seek legal relief, which involves seeking damages. Damages refer to the compensation you deserve for the losses your employer’s conduct caused you.
Damages in a wrongful termination lawsuit might include:
- Lost wages you should have earned if not for your untimely firing
- Lost benefits that depend on your employment
- Costs of your search for new suitable employment, including job search sites, headhunters, or resume services
- Any bills you have for psychological treatment you needed due to the sexual harassment and subsequent firing
- Emotional distress, including anxiety or other mental struggles due to your experiences at work
- Attorney’s fees
- Punitive or exemplary damages if your employer engaged in intentional and particularly egregious conduct
Some damages are easier to calculate than others, but your lawyer will ensure you seek all of the compensation you deserve for sexual harassment, unlawful retaliation, and wrongful termination.
When should you contact a sexual harassment lawyer?
Many people do not know when it is time to get a lawyer involved in their employment law matters.
There are different times you might want to contact an attorney, including:
- When you first believe you are experiencing sexual harassment
- If you need guidance on how to report the matter to your employer
- After your employer ignores or fails to respond to your harassment report
- As soon as your employer fires you or takes other adverse action
Legal representation can benefit you at any of these times. The earlier you consult with an attorney, the sooner they can begin work on protecting your employment rights. You deserve the proper legal relief for the violation of your rights by your former employer. Reach out to a San Diego sexual harassment lawyer.