What Type of Evidence Does a Plaintiff Need to Support a Claim of Sexual Harassment in the Workplace

I. Introduction

Workplace sexual harassment is a form of sex discrimination that violates California’s Fair Employment and Housing Act (state law) [1] and also Title VII of the Civil Rights Act (federal law). [2] To successfully bring a workplace sexual harassment claim under Title VII, an employee must prove that they were subjected to sexual advances, conduct, gestures, or comments that were (1) unwelcome, (2) based on an individual’s sex, (3) sufficiently severe or pervasive enough to alter the conditions of employment and create a hostile or abusive work environment, and (4) that the employer is responsible for the misconduct. [3] California utilizes same standard for hostile work environment sexual harassment claims under the FEHA. [4] Understanding these evidentiary requirements is essential for employees seeking to protect their rights and to hold employers accountable for maintaining a safe and lawful work environment. This article explores the legal framework surrounding workplace sexual harassment, focusing on the provisions of the FEHA and Title VII, the different types of harassment, the legal standards of employer liability, and the importance of gathering strong evidence in building a case.

II. Legal Background

There are two primary laws governing sexual harassment claims in California:

• The California Fair Employment and Housing Act (FEHA), [5] and
• Title VII of the Civil Rights Act of 1964 (Title VII) [6]

Both the FEHA and Title VII prohibit sexual harassment as a form of sex-based discrimination. [7] While the FEHA explicitly prohibits sexual harassment, Title VII does not directly mention it but has been interpreted to forbid sexual harassment as a form of sex discrimination. [8] Although the language of these statutes differs in some particulars, “the anti-discriminatory objectives and overriding public policy purposes of the two acts are identical.” [9] Both acts treat the prohibition against sexual harassment as “part and parcel to the broader proscription against sexual discrimination.” [10] As a result, California courts often look to federal Title VII decisions for guidance in interpreting the FEHA. [11]

A. The FEHA

The FEHA, along with the California Labor Code, expressly prohibits employers from discriminating against any individual with respect to compensation, terms, conditions, privileges, or other aspects of employment because of the individual’s sex. [12]

The FEHA also explicitly prohibits sexual harassment in the workplace, making it an unlawful employment practice for an employer to harass an individual because of their sex. [13] Under the statute, “‘harassment’ because of sex” includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or other related medical conditions. [14] The prohibition against sexual harassment encompasses a wide range of conduct, including both the explicit or implicit conditioning of employment benefits on submission to or tolerance of unwelcome sexual advances, as well as the creation of a hostile work environment based on sex. [15] Thus, sexually harassing conduct does not need to be motivated by sexual desire. [16] Additionally, under both Title VII and the FEHA, sexual harassment may occur between members of the same gender if the harassment amounted to discrimination because of sex. [17]

Prohibited harassment includes “verbal, physical, and visual harassment, as well as unwanted sexual advances.” [18] Verbal harassment may consist of “epithets, derogatory comments, or slurs on the basis of sex.” [19] Physical harassment “may include assault, impeding or blocking movement, or any physical interference with normal work or movement, when directed at an individual based on sex.” [20] Visual harassment “may include derogatory posters, cartoons, or drawings on the basis of sex.” [21]

Under the FEHA, an employee who engages in sexual harassment will be personally liable for their misconduct regardless of whether the employer knows or should have known of the conduct and fails to take appropriate corrective action. [22] However, the FEHA imposes two different standards of liability against an employer, depending on whether the harasser is a supervisor or a non-supervisory co-employee (i.e., a coworker). [23]

If the harasser is a supervisor, the employer is strictly liable, meaning the employer is automatically liable for the harassment, regardless of whether the employer knew or took steps to prevent it. [24] The California Legislature has clarified that employers are strictly liable for all acts of harassment committed by a supervisor, regardless of whether the supervisor was acting as an agent of the employer at the time of misconduct. [25] A finding of strict liability will depend on whether the supervisor is acting in the capacity of supervisor when the harassment occurs, as purely private relationships unconnected to the employment will not lead to employer liability. [26] However, strict liability does not mean absolute liability and the plaintiffs’ own conduct may limit the amount of damages recoverable or, in some cases, bar recovery entirely. [27] For example, in State Dep't of Health Servs. v. Superior Ct., the California Supreme Court held that an employee's failure to report harassment to their employer did not exempt the employer from strict liability, although such failure to report could be considered as a factor in reducing the damages recoverable. [28]

In contrast, if the harasser is a non-supervisory coworker to the plaintiff, the employer’s liability is ruled by a negligence standard. [29] “The employer is liable for harassment by a non-supervisory employee only if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action.” [30] Here, agency principles apply, meaning the coworker must have been acting as an agent of the employer at the time of misconduct for the employer to be held liable. [31]

In summary, under the FEHA, an employer is automatically liable (strict liability) if a supervisor harasses an employee, no matter what the employer knew or did to prevent it. However, if the harasser is a non-supervisor, the employer is not liable unless it knew or should have known about the harassment and failed to take appropriate corrective action (negligence).

B. Title VII

While the language of Title VII does not expressly mention sexual harassment, the statute prohibits sexual harassment as a form of sex discrimination. [32] Like the FEHA, Title VII prohibits an employer from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of…sex.” [33] Since the workplace environment is one of the terms, conditions, or privileges of employment, a plaintiff may establish a Title VII violation by showing that discrimination, based on the plaintiff’s sex, created a hostile or abusive work environment. [34] Additionally, Title VII defines “employer” to include any “agent” of the employer. [35]

Sexual harassment under Title VII includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when “(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.” [36]

Since the FEHA is considered a counterpart to Title VII, California courts may refer to federal court interpretations of Title VII when construing the FEHA. [37] However, when the FEHA and Title VII differ in provisions, weight given to federal precedents diminishes and California courts perform an independent analysis based on state law principles. [38]

III. Forms of Workplace Sexual Harassment

California courts have generally recognized two distinct forms of sexual harassment:

A. Quid Pro Quo Harassment

Quid pro quo sexual harassment occurs when an employee is offered concrete employment benefits in exchange for submitting to sexual conduct. [39] Concrete employment benefits may include promotions, raises, or continued employment that is conditioned upon submitting to sexual advances. Unwelcome sexual advances can include sexual propositions, explicit discussions of sexual acts, or inappropriate comments about an employee's body. [40] Thus, when submission to or rejection of unwelcome sexual advances or requests for sexual favors is used as the basis for employment decisions, quid pro quo harassment has occurred.

To prove quid pro quo sexual harassment under the FEHA or Title VII, a plaintiff must show “that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands.” [41] Additionally, a plaintiff claiming quid pro quo harassment after rejecting a defendant's request for sexual favors must show a causal connection between that rejection and some adverse employment action. [42]

B. Hostile Work Environment Harassment

Hostile work environment sexual harassment arises when an employee is subjected to unwelcome sexual conduct that is so severe or pervasive that it alters the conditions of employment and creates a hostile work environment. [43] Hostile work environment harassment is a type of sexual harassment that “has the purpose or effect of either interfering with the work performance of an employee, or creating an intimidating workplace.” [44]

To prevail in a hostile work environment sexual harassment claim under the FEHA or Title VII, a plaintiff must prove the following elements:

Under the FEHA and Title VII, the existence of a hostile work environment depends upon “the totality of the circumstances.” [56] Therefore, to prove a hostile work environment claim, a plaintiff must show that the unwelcome sexual conduct was severe and pervasive enough to create a work environment that would be considered objectively hostile or abusive to a reasonable person. [57]

IV. There Are Two Main Categories of Evidence Required to Support a Claim of Workplace Sexual Harassment

A. Category #1: Evidence of the Harassment Itself

To demonstrate that harassment occurred, plaintiffs need to present direct or indirect evidence of the misconduct. [58] This may include:

• Personal testimony recounting the harassing conduct
• Inappropriate text messages, work messages, emails, or images sent by the harasser
• Derogatory drawings, cartoons, or posters created or distributed by the harasser
• Videos, photos, or audio recordings capturing the harassing conduct, including surveillance footage
• Witness declarations or testimonies from colleagues who observed the harassment or can attest to a pattern of harassing behavior in the workplace
• Promotions, raises, or employment offers that were conditioned upon submitting to sexual demands
• Adverse employment actions such as unfavorable job changes, demotions, or disciplinary actions that took place after the plaintiff rejected the harasser’s sexual demands

B. Category #2: Evidence of Complaints to the Company

A key factor in holding an employer accountable for harassment by a non-supervisory co-employee is proving that the employer knew or should have known about the harassment and failed to take appropriate action. [59] Relevant evidence to collect includes:

• Emails, text messages, or other written complaints submitted to management, supervisors, or human resources
• Testimonies from witnesses who were aware of the complaints
• Responses or the lack thereof from management, supervisors, human resources, or other colleagues who were aware of the complaints
• Prior complaints of harassment against the same individual or other individuals in the workplace

V. Building a Strong Case: Tips for Collecting Evidence Like a Lawyer

When gathering evidence to support a claim of sexual harassment in the workplace, plaintiffs must think holistically. A strong foundation begins with collecting direct evidence of the harassment, including emails, text messages, workplace communications, photos, videos, audio recordings, or surveillance footage that captures or corroborates the misconduct. Indirect evidence, such as witness declarations or testimonies from colleagues who observed the harassment can also substantiate the claim.

Expanding the scope of documentation will further strengthen the claim. This may include Slack or other workplace messaging app conversations, performance reviews that reflect retaliation after reporting harassment, calendar invites, meeting notes that corroborate interactions, and even recorded voicemails. If applicable, medical or therapy records can additionally help demonstrate the emotional and psychological toll of the harassment.

For harassment by a non-supervisory co-employee, evidence that the employer knew or reasonably should have known of the misconduct and failed to take appropriate action is crucial to support a claim. Employees should preserve any written complaints submitted to supervisors, management, or human resources, along with any responses—or lack thereof—from the employer.

Reviewing workplace policies and past complaints against the harasser or employer can further expose a pattern of misconduct and illustrate the employer's failure to implement preventive or corrective measures. Statements or testimonies from colleagues, former employees, or others with insight into the hostile workplace culture or known patterns of misconduct can strengthen a claim. Specifically, "Me Too" evidence of similar incidents involving other victims can help prove a pattern of harassment, even if it is not direct evidence of the harassment against the plaintiff.

Additionally, evidence of retaliation, such as unfavorable job changes, demotions, or disciplinary actions taken by the harasser, management, or employer after the plaintiff’s complaints, can strengthen a legal claim by highlighting the employer’s awareness and failure to protect the employee from further harm or punishment. Lastly, evidence of harassment directed at other employees within the plaintiff’s immediate work environment, especially incidents the plaintiff personally witnessed, can be used to prove the existence of a hostile work environment. [60]

The overarching goal is to build a compelling and comprehensive picture that not only illustrates a pattern of inappropriate behavior but demonstrates the employer’s liability for the misconduct.

VI. Me Too Evidence

The #MeToo Movement has not only heightened awareness on the issue of sexual violence, but has also significantly impacted how courts evaluate evidence in workplace sexual harassment claims. Even before the #MeToo Movement gained national attention in 2017, California courts began to recognize the value of what is now known as “Me Too” evidence. [61]

Under California law, "Me Too" evidence, which refers to evidence of harassment or discrimination experienced by employees other than the plaintiff, can be admissible to support a plaintiff’s claim of sexual harassment in the workplace. [62]

The 2011 case of Pantoja v. Anton set a key precedent in California by ruling that courts could admit “Me Too” evidence of harassment against other employees, even if those incidents occurred outside the plaintiff’s presence and at times when the plaintiff was not employed by the employer. [63] Specifically, “Me Too” evidence may be admissible to show a defendant's discriminatory intent or motive, to rebut the defendant’s evidence, and to impeach a defendant’s credibility. [64]

VII. Limitations to the Use of Me Too Evidence

Although courts have permitted the use of “Me Too” evidence, they have also imposed specific limitations on its admissibility in workplace sexual harassment claims. The admissibility of "Me Too" evidence is determined by its relevance to the plaintiff’s circumstances and theory of the case. [65] Courts must weigh the probative value of such evidence against its risk of undue prejudice. [66] “Me Too” evidence is generally inadmissible if the plaintiff had no knowledge of the harassing conduct to others. [67] Additionally, California courts have the discretion to exclude relevant "Me Too" evidence if its probative value is substantially outweighed by the risk of undue prejudice, confusion of the issues, or misleading the jury. [68]

A. The “Same Protected Class” Limitation

The “Me-Too” doctrine generally does not permit a plaintiff to present evidence of discrimination against employees outside of the plaintiff's protected class to prove harassment against the plaintiff. [69] A protected class refers to a group of people who share a common characteristic and are legally protected from discrimination. Under Title VII, a protected class includes categories such as race, color, religion, sex, and national origin. [70]

Defendants may challenge the admissibility of “Me Too” evidence from employees outside the plaintiff’s protected class, arguing that the probative value of such evidence is outweighed by its risk of undue prejudice or excess time consumption. [71] Some courts have upheld this argument, ruling that “Me Too” evidence must be directly tied to the plaintiff’s protected class to prevent the admission of evidence that is irrelevant, or whose probative value is outweighed by the risk of unfair prejudice or excess time consumption. [72]

B. The Same Decision-Maker Limitation

Defendants have also argued, and some courts have held, that “Me Too” evidence must be excluded if the decision-maker who acted against the plaintiff was not the same decision-maker who acted against the “Me Too” witnesses. [73] However, the Supreme Court has ruled that “Me Too” evidence can be admissible, even if the decision-makers differ. [74]

Evidence of discrimination, harassment, or retaliation by different decision-makers is not per se inadmissible, and excluding such evidence on that basis is an abuse of discretion. [75] Instead, the admissibility of such evidence depends on the specific facts of the case and several factors, including how closely the evidence relates to the plaintiff’s “circumstances and theory of the case.” [76]

C. Propensity Evidence

While “Me Too” evidence can be admissible to prove intent, motive, or similar elements with respect to the plaintiff's protected class, it is never admissible to prove an employer's propensity to harass. [77] Instead, the admissibility of “Me Too” evidence hinges on how closely related the evidence is to the plaintiff's circumstances and theory of the case. [78] Additionally, the evidence must be relevant to showing intent, proving bias, demonstrating motive, impeaching the credibility of the defendant’s witnesses, or rebutting factual claims made by the defense. [79]