⚠ Critical: Notify EPLI Carrier Immediately

Employment Practices Liability Insurance (EPLI) covers harassment and discrimination claims. Notify your carrier immediately upon receiving any complaint, demand letter, or CRD/EEOC charge. Most policies require prompt notice and provide legal defense. Do NOT investigate or respond without consulting with counsel or your carrier.

Types of Claims Under FEHA

Sexual Harassment

Quid pro quo or hostile work environment based on sex, gender, or sexual orientation

Race/National Origin Discrimination

Adverse actions or harassment based on race, color, ancestry, or national origin

Disability Discrimination

Failure to accommodate, adverse action based on disability, or disability harassment

Age Discrimination

Adverse treatment of employees 40+ years old (FEHA has no upper limit unlike federal ADEA)

Religious Discrimination

Failure to accommodate religious practices or discrimination based on religion

Pregnancy Discrimination

Adverse actions related to pregnancy, childbirth, or related medical conditions

Retaliation

Adverse action for complaining about discrimination, participating in investigation, or opposing unlawful practices

CFRA/FMLA Interference

Denial of leave, retaliation for taking leave, or failure to reinstate

Understanding FEHA Coverage

⚖ FEHA Employer Thresholds

  • Harassment claims: 5 or more employees (includes harassment by non-employees like customers/vendors)
  • Discrimination claims: 5 or more employees
  • CFRA leave: 5 or more employees (as of 2021)
  • Pregnancy disability leave: 5 or more employees
  • Religious accommodation: 5 or more employees

Note: Unlike federal law (15+ employees for Title VII), California's FEHA covers much smaller employers. Individual supervisors can be personally liable for harassment.

Required Investigation Protocol

🔎 Employer's Duty to Investigate

Under FEHA, employers have an affirmative duty to investigate complaints of harassment and discrimination. Failure to properly investigate can itself create liability.

  1. Receive complaint: Accept complaints through any channel (verbal, written, formal, informal). Don't require specific format.
  2. Immediate interim measures: Consider separating complainant from alleged harasser if needed. Do not retaliate against complainant.
  3. Select investigator: Use trained, neutral investigator (internal HR, outside investigator, or attorney).
  4. Interview complainant: Get detailed account - who, what, when, where, witnesses. Explain confidentiality limits.
  5. Interview accused: Provide fair opportunity to respond. Don't prejudge outcome.
  6. Interview witnesses: Talk to anyone with relevant information. Document thoroughly.
  7. Gather documents: Collect emails, texts, personnel files, performance reviews, policies.
  8. Make determination: Assess credibility, reach conclusion on whether policy was violated.
  9. Take corrective action: If violation found, take prompt remedial action proportional to offense.
  10. Document everything: Written investigation report. Communicate outcome to parties.

💡 The Faragher-Ellerth Defense

For supervisor harassment that doesn't result in tangible employment action, employers may assert an affirmative defense by showing: (1) they exercised reasonable care to prevent and correct harassment (policies, training, complaint procedures), AND (2) the employee unreasonably failed to use available preventive/corrective opportunities. This defense is NOT available if tangible employment action occurred (termination, demotion, etc.).

Available Defenses

Prompt Investigation & Remedial Action Strong

Employer conducted thorough, good-faith investigation upon learning of complaint and took appropriate corrective action. This can limit liability even if harassment occurred.

Evidence needed: Investigation file, interview notes, timeline showing prompt response, documentation of corrective action taken

No Harassment/Discrimination Occurred Strong

Investigation found allegations not substantiated. Conduct didn't rise to level of harassment (isolated minor incidents), or employment decision was based on legitimate non-discriminatory reasons.

Evidence needed: Investigation report, witness statements, contemporaneous documentation supporting legitimate reasons

Legitimate Non-Discriminatory Reason Strong

Adverse employment action was based on legitimate business reasons (poor performance, misconduct, layoff criteria) unrelated to protected characteristic.

Evidence needed: Performance reviews, documented warnings, business justification, evidence same treatment of similarly-situated employees outside protected class

Avoidable Consequences (Faragher-Ellerth) Moderate

For supervisor harassment without tangible job action: Employer had effective anti-harassment policy and complaint procedure, and employee unreasonably failed to use it.

Evidence needed: Written policies distributed to employees, training records, accessible complaint procedures, evidence employee didn't report

Harassment Was Not Severe or Pervasive Moderate

Conduct, while inappropriate, was not severe or pervasive enough to create hostile work environment under legal standard. Isolated incidents, offhand comments, or simple teasing may not meet threshold.

Evidence needed: Context showing limited nature of conduct, lack of impact on work environment, comparisons to case law standards

Statute of Limitations / Administrative Exhaustion Situational

Claim is time-barred (3 years to file with CRD, then 1 year to file suit after right-to-sue) or employee failed to exhaust administrative remedies.

Evidence needed: Timeline of alleged conduct vs. CRD filing date, absence of timely administrative charge

Complainant Not in Protected Class Situational

Complainant cannot establish membership in protected class, or adverse action affected employees across multiple classes equally.

Evidence needed: Employment records, evidence of equal treatment across groups

Response Timeline

1

Immediately Upon Receiving Complaint/Demand

Notify EPLI carrier. Preserve all documents (litigation hold). Do not retaliate or discuss with others. Separate parties if needed to prevent ongoing issues.

2

Within 48-72 Hours

Begin investigation. Interview complainant. Gather initial documents. Assess need for outside investigator. Document all steps taken.

3

Within 2-4 Weeks

Complete investigation. Interview all relevant witnesses. Make findings. Take corrective action if warranted. Prepare investigation report.

4

If CRD/EEOC Charge Filed

Respond to agency within stated deadline (usually 30 days). Position statement prepared with counsel. Continue to preserve documents.

Document Checklist

Evidence to Preserve and Gather

Anti-harassment/discrimination policies (with signed acknowledgments)
Harassment prevention training records (SB 1343 compliance)
Complainant's personnel file and performance reviews
Accused's personnel file and disciplinary history
All communications related to the complaint (emails, texts, HR notes)
Investigation file (if investigation conducted)
Prior complaints (from complainant or about accused)
Documentation of any adverse employment actions
Witness contact information
Organizational charts showing reporting relationships

Sample Position Statement (CRD Response)

POSITION STATEMENT To: California Civil Rights Department Re: Charge No. [Number] Charging Party: [Name] Respondent: [Company Name] I. INTRODUCTION [Company Name] ("Respondent") submits this Position Statement in response to the charge of discrimination filed by [Charging Party] ("Complainant"). Respondent denies the allegations and requests dismissal of this charge. II. STATEMENT OF FACTS [Provide factual background:] - Complainant was employed as [position] from [date] to [date] - [Describe relevant employment history, performance, any documented issues] - [Describe the employment action at issue and legitimate business reasons] III. RESPONDENT'S POSITION A. No Discrimination Occurred [For disparate treatment claims:] Complainant was not subjected to discrimination based on [protected characteristic]. The employment decision was based solely on legitimate, non-discriminatory business reasons, specifically [explain reasons with supporting documentation]. Similarly situated employees outside Complainant's protected class were treated the same way. [Provide comparator evidence if available.] B. No Harassment Occurred / Proper Response to Complaint [For harassment claims:] [If no harassment found:] Respondent conducted a thorough investigation and determined that the alleged conduct did not occur / did not rise to the level of unlawful harassment. [If corrective action taken:] Upon learning of the complaint, Respondent immediately investigated and took prompt corrective action including [describe actions taken]. The harassment ceased following Respondent's intervention. C. Respondent Maintained Appropriate Policies and Procedures Respondent maintains comprehensive anti-harassment and anti-discrimination policies that were distributed to all employees, including Complainant. Respondent provides regular harassment prevention training as required by SB 1343. Complainant acknowledged receipt of these policies on [date]. IV. CONCLUSION For the foregoing reasons, Complainant's charge should be dismissed. The evidence demonstrates that Respondent's actions were based on legitimate business reasons, not discrimination, and that Respondent took all reasonable steps to prevent and address any workplace misconduct. Respectfully submitted, [Name] [Title] [Company Name] Attachments: 1. Anti-Harassment Policy with Complainant's acknowledgment 2. Training records 3. [List other supporting documents]

⚠ Do Not:

  • Retaliate against the complainant in any way (this creates separate liability)
  • Discuss the complaint with non-essential personnel
  • Destroy or alter any documents
  • Contact the complainant to discuss settlement without attorney guidance
  • Make any admissions without consulting counsel

Related Resources

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