California’s workplace harassment cases often turn not on whether misconduct happened, but on whether anyone can prove it. Memories fade, employees leave, devices are replaced, and inboxes get purged. What survives are the documents, messages, and digital traces of what people said and did. Evidence preservation is the backbone of a sexual harassment claim in California, and spoliation, the loss or destruction of evidence, can kneecap a strong case or expose an employer to sanctions that eclipse the underlying damages.
This is a practical guide anchored in California law and real case dynamics. It covers what is considered sexual harassment in California, when preservation duties start, how to safeguard evidence inside and outside the workplace, what to do when the other side won’t cooperate, and the consequences of spoliation in the courtroom and during investigations.
The legal frame: California’s standard for sexual harassment
California sexual harassment laws under the Fair Employment and Housing Act, usually abbreviated FEHA, prohibit harassment based on sex, gender, gender identity, gender expression, sexual orientation, pregnancy, childbirth, or related medical conditions. The statute is expansive and protective. You do not need to show that harassment was severe and pervasive as federal law often suggests; a single incident can suffice if it unreasonably alters working conditions or is severe. California courts emphasize context, frequency, severity, and impacts on work.
Two classic categories still help organize facts. Quid pro quo harassment in California involves conditioning benefits or avoiding detriment on submission to sexual conduct, typically by a supervisor with tangible job control. A hostile work environment in California arises when unwelcome conduct based on sex creates an abusive or intimidating work setting. The California sexual harassment definition includes verbal sexual harassment, physical sexual harassment, unwanted advances at work, lewd comments or messages, and nonverbal behavior like obscene gestures or displays. Harassment by coworkers, supervisors, and even third parties like vendors or clients is actionable.
FEHA makes employers strictly liable for supervisor sexual harassment in California and liable for coworker or third party sexual harassment if the employer knew or should have known and failed to take immediate and appropriate corrective action. That last clause ties directly to evidence: whether an employer “knew or should have known” is proven with emails, reports, chat logs, policy acknowledgements, witness interviews, and investigation records.
Why evidence preservation decides so many cases
In my experience, the best witness in a harassment lawsuit is often a timestamp. A text message sent at 11:18 p.m. from a supervisor after a team dinner, the HR ticket opened the next morning, the calendar invite titled “one-on-one - drinks,” the surveillance video showing an employee leaving a conference room in tears. These data points keep stories anchored.
California sexual harassment lawsuits turn on credibility. Juries want contemporaneous records, not reconstructed narratives. Arbitrators and mediators take the same view. The California Civil Rights Department, formerly DFEH and now CRD, expects employers to show a paper trail of policy dissemination, training, reporting channels, and an investigation process that was timely, thorough, and impartial. When these are missing, or when an employee cannot produce even a single corroborating text, the case becomes harder. Not impossible, but harder.
The flip side is spoliation. If relevant evidence goes missing after someone knew or should have known to preserve it, judges can impose sanctions, juries can be instructed to presume the missing evidence was unfavorable, and settlements tend to rise fast. I have seen six-figure delta swings in mediation after a forensics report showed a manager wiped a phone two weeks after HR got the complaint.
When the duty to preserve attaches
Preservation starts earlier than many people think. The duty arises when litigation is reasonably anticipated, not only after a lawsuit is filed. In sexual harassment at work in California, reasonable anticipation often occurs at one of these moments: an internal complaint to HR, a report to a supervisor, an attorney demand letter, an intake filed with the EEOC or California Civil Rights Department, or even a pattern of internal chatter that points to likely claims.
For employees, the duty is practical rather than legalistic. Judges do not expect ordinary people to act like digital forensics teams. They do expect common sense. Hang on to your phone, keep relevant messages, do not wipe cloud backups, and do not delete work calendars or emails you can still access.
For employers, the standards are stricter. Once on notice, an employer is expected to implement a litigation hold, suspend normal data deletion where relevant, and coordinate IT to capture email boxes, chat archives, server folders, mobile device data where appropriate, badge logs, and video footage within retention windows. When employers say, we only keep camera footage for 14 days, a reasonable response is: then you have 14 days to preserve it once you anticipate litigation. California workplace harassment laws interact with discovery obligations that require diligence, not passive routines that allow the clock to run out.
What counts as evidence in a sexual harassment claim
The universe is bigger than emails. In California sexual harassment litigation, the following categories regularly shape outcomes:
- Communications: emails, texts, Slack or Teams messages, direct messages, social media messages tied to work, calendar invites, and meeting notes. Audio and video: workplace security footage, recordings of calls or voicemails, screen recordings, video meetings with chats saved. Policies and training: the California sexual harassment training requirements under AB 1825 and SB 1343 make two-hour supervisory training and one-hour employee training recurring obligations. Proof of attendance, content of the modules, policy acknowledgments, and sign-in sheets show compliance and employee awareness. Personnel records: performance reviews, disciplinary notes, job assignments, promotions, and pay changes. These help establish retaliation after reporting sexual harassment in California and can support constructive dismissal theories. Investigation files: intake notes, witness interview summaries, timelines, credibility assessments, and final conclusions, plus corrective steps taken. Metadata: timestamps, IP logs, mobile device IDs, revision histories on documents, and email headers. Metadata often resolves “who sent what when” disputes.
California evidence rules generally allow authenticated screenshots and downloads, but courts are wary of altered images. Capture originals where possible, and keep the device or source intact. Your California sexual harassment attorney can Employment Law Lawyers California work with a forensic consultant when needed.
Preservation for employees: a practical playbook
Employees rarely control the company servers, but they do control their own devices, accounts, and paper trails. Most cases I have helped build started with a handful of texts and a saved calendar invite. A disciplined approach can make a real difference.
First, secure your phone and personal accounts. Do not reset devices. Turn off auto-delete for messages. Make a local backup if you can, then a cloud backup. If you need to replace a device, keep the old one until your attorney confirms a safe imaging process.
Second, gather what you created or received. That includes texts, emails sent to your personal account, voicemails, calendar invites, saved chats, handwritten notes taken after incidents, and photos. If you used a work email or messaging platform, do not break access rules or hack around permissions, but do preserve what you have lawful access to. If your employer later cuts off access, your attorney can request data through discovery or by subpoena.
Third, memorialize. A contemporaneous note captured the same day an incident occurs carries weight. A simple format works: date, time, location, who was present, what was said or done, how you responded, and how it affected your work. If you reported to HR, document the date, who received the report, and the follow-up.
Fourth, protect your witness network. Coworkers move on quickly. Exchange personal contact information with anyone who observed incidents or received your real-time messages. Jurors often respond strongly to a friend or coworker who says, she texted me that night and I could tell she was shaken.
Fifth, stay off social media debates about the case. Screenshots live forever and opposing counsel will find them. If you need to vent, talk privately to your lawyer or a counselor, not to the internet.
Preservation for employers: from policy to practice
Companies often have strong sexual harassment policies on paper, yet lose cases because they failed the mechanics of preservation. The most defensible employers treat evidence preservation like a safety drill, not a fire that occasionally happens.
Issue a litigation hold the same day you receive a credible complaint, an attorney letter, or a CRD/EEOC intake. The hold must be specific to custodians, data types, time ranges, and systems. Identify the people most likely to have relevant information: the complainant, the accused, witnesses, HR business partners, supervising managers, and anyone copied on key emails. Require written acknowledgment and periodic reminders.
Work with IT to suspend automated deletion on relevant email boxes, chats, and shared drives. If your Slack instance auto-deletes messages at 90 days, toggle that setting for custodians and relevant channels. If building cameras overwrite video every 30 days, export the time ranges immediately. If employees use company phones, preserve them before wiping, and coordinate with legal to image devices in a way that captures content while respecting privacy settings.
Document your training. California AB 1825 sexual harassment training and California SB 1343 harassment training require regular sessions and documentation. Keep the content, instructor credentials or vendor certifications, attendance logs, and any quizzes or completion proof. Juries look for whether the accused actually sat for training and acknowledged the policy. It will matter.
Conduct the sexual harassment investigation in California promptly, neutrally, and with written scope and methods. Preserve raw notes, draft summaries, and final reports. When making findings, explain credibility judgments. If discipline occurs, retain the records and the rationale. If no discipline, retain the basis for that conclusion. Spoliation accusations often target investigation files, especially when draft notes disappear while only a polished conclusion remains.
Finally, protect against retaliation. FEHA prohibits retaliation for reporting sexual harassment in California. Track any changes to complainant work assignments, reviews, or pay within months after the report. Retaliation claims frequently carry higher damages than the underlying harassment allegations, and evidence on these decisions tends to be documentary.
Spoliation: what it is, and why courts punish it
Spoliation means the destruction, alteration, or failure to preserve evidence relevant to anticipated or pending litigation. California courts distinguish between negligent and intentional spoliation, but both can lead to sanctions. The forms vary: monetary penalties, issue sanctions that deem certain facts established, evidence preclusion, and adverse inference instructions that tell the jury it may infer the missing evidence would have been unfavorable to the spoliating party. In egregious cases, terminating sanctions can end a case.
Courts look at timing and intent. Did the duty to preserve exist? Was the evidence destroyed after that duty arose? Was the destruction part of routine practice, and if so, did the party take reasonable steps to suspend the routine once on notice? Did the party try to recover or restore the information? Judges who believe a party let the clock run out on purpose tend to punish hard.
For digital evidence, California courts routinely expect parties to work with forensic methodologies. If a manager factory-resets a company phone after HR begins an investigation, do not expect leniency. If a complainant loses messages through normal phone replacement before any report, courts are more forgiving, though the evidentiary hole remains.
The special problem of ephemeral messaging
Workplaces increasingly rely on tools that erase chats by default. Some organizations view this as tidy, not risky. In harassment matters, it is risky. An entire narrative might live in Slack DMs, Microsoft Teams chats, WhatsApp threads, or iMessage exchanges.
Ephemeral platforms are not off limits for discovery. Courts can order production of messages you still control. Employers should decide before any incident whether business use of ephemeral apps will be allowed, logged, or banned. If they are allowed, IT must be ready to adjust retention when a sexual harassment claim in California arises. For employees, if harassment occurs on an app that auto-deletes, screenshot in real time and email copies to yourself, preserving date and time. If screen capture feels unsafe, consider sending a contemporaneous summary to a trusted contact or to HR, which creates a corroborating timestamp.
Filing and administrative deadlines: preservation under time pressure
California sexual harassment statute of limitations rules influence preservation decisions. Generally, claimants must file an administrative complaint with the California Civil Rights Department within three years of the alleged unlawful practice. The CRD issues a right-to-sue notice, after which a civil action can be filed within one year. Different rules apply for public entities, arbitration agreements, and federal EEOC filings. Filing deadlines in California sexual harassment cases often intersect with internal grievance procedures or union timelines.
Do not let the clock lull you. Evidence ages faster than claims deadlines. Security videos roll over in days or weeks. Contractors change phones. Cloud services adopt new retention defaults. If you reasonably anticipate filing, preserve immediately. If you counsel employers, train HR to act in days, not months.
What to do if the other side is destroying evidence
You will not always catch spoliation as it happens. More often, you suspect it later, when a production seems too thin or key custodians say they do not recall. There are practical steps that push without overreaching.
Send a preservation letter early, with enough specificity to be credible. Identify categories, date ranges, and systems that must be preserved. If you represent an employee, send it to the employer’s legal department and to HR. If you represent an employer, send it to the employee’s counsel and request confirmation that personal devices and accounts are preserved.
If evidence appears missing during discovery, ask for the document retention policies, legal hold instructions, and IT descriptions of system retention. Forensic affidavits carry weight. Judges often respond to concrete, technical showings rather than accusations of bad faith.
If spoliation is proven or strongly suggested, request appropriate sanctions. Ask for an adverse inference on specific issues, not a blanket instruction. Tailored remedies are more likely to stick and to drive settlement.
Arbitration, mediation, and investigations: preservation still matters
Many California employees signed arbitration agreements, so sexual harassment arbitration in California is common. Arbitrators do not have the exact same toolbox as judges, but they can and do penalize spoliation with adverse inferences and fee awards. In my experience, arbitrators are pragmatic: show them a forensic timeline and they will draw reasonable conclusions.
Mediation depends on leverage. When one side proves the other deleted video or wiped chats after notice, it changes the risk calculation. Sexual harassment settlements in California vary widely, but spoliation tends to increase both the likelihood and the size of settlement. No employer wants to defend a missing-evidence instruction before a jury. No plaintiff wants a jury to wonder why screenshots appeared only after a lawsuit began.
Internal investigations also hinge on preservation. If a company cannot produce witness statements or loses the investigator’s notes, the CRD or EEOC may view the investigation as inadequate. That feeds into employer liability for sexual harassment in California, especially on coworker and third party harassment, where the core question is whether the employer took immediate and appropriate corrective action.
Independent contractors and joint environments
Independent contractor sexual harassment in California raises messy preservation issues. The harasser might be a client, vendor, or franchise operator. The employer or principal can still be responsible if it knew or should have known and failed to act. Evidence lives in multiple systems: the contractor’s phone, the client’s security cameras, the company’s Slack, the staffing agency’s HR files. Preservation letters should go broad, and counsel should consider third-party subpoenas early. Contracts with vendors should require cooperation with investigations and retention of relevant records upon notice.
Joint worksites like hospitals, warehouses, or construction sites complicate data stewardship. Who owns the footage? Which badge system logs entry? The best prevention is clear contract language on sexual harassment policy requirements, reporting channels, and cooperation in the sexual harassment complaint process in California.
Damages and how evidence shapes them
Sexual harassment damages in California include back pay, front pay, emotional distress, punitive damages where malice, oppression, or fraud are proven, and attorney’s fees. Documentation influences every category. Payroll records support wage loss. Therapy notes and contemporaneous journals help establish emotional distress. Evidence of repeated warnings to HR or management supports punitive exposure. Spoliation can serve as a proxy for bad intent in the punitive analysis, though judges prefer direct evidence.
I have seen comparable liability facts yield very different outcomes based on evidence strength. A case with texts, calendar invites, and a prompt HR response might settle in the mid-five figures. The same case, with wiped chats and a delayed investigation, can breach six figures. The difference is not legal theory; it is credibility and risk.
The employer policy layer: make compliance visible
California sexual harassment policy requirements are not just boxes to check. The policy should define prohibited conduct using California’s standards, provide multiple reporting channels, promise prompt and impartial investigations, protect against retaliation, and explain the consequences for violations. Posting notices and distributing the policy is not enough. A court will ask: how did employees actually experience these policies? Were they trained? Did supervisors get the longer training? Did HR track complaints and outcomes? Do managers understand that they must elevate reports immediately?
Compliance visibility matters. Keep training completion rates above 95 percent. Audit supervisors for the two-hour training requirement. Keep proof that contractors and temporary workers receive applicable policies. Preserve acknowledgments in personnel files. These details often shield employers when a single bad actor defies policy.
Practical checklist: preservation moves that pay dividends
- Issue and acknowledge a specific litigation hold within 24 to 72 hours of notice; identify custodians and systems. Preserve high-rotation data immediately: security video, chat logs with short retention, and mobile devices slated for replacement. Capture training and policy records: AB 1825 and SB 1343 compliance, attendance, and policy acknowledgments. Maintain investigation files intact, including drafts and notes; record the rationale for findings and actions taken. For employees, back up devices, retain texts and voicemails, and document incidents contemporaneously with date, time, location, and witnesses.
Retaliation and constructive discharge: evidence of what happens next
California sexual harassment retaliation claims often hinge on what changed after the report. Timelines matter. A transfer presented as neutral might in reality isolate the complainant from key work. A performance memo might appear weeks after the complaint, without prior warnings. Keep versions of job descriptions, project rosters, sales territories, and KPI dashboards before and after the complaint. Constructive dismissal claims, when conditions become so intolerable that a reasonable person would resign, require detailed evidence of those conditions. Daily logs and contemporaneous communications carry real weight.
Navigating CRD and EEOC processes with an eye on proof
How to file a sexual harassment complaint in California begins with an intake at the California Civil Rights Department or with the EEOC. Many claimants request an immediate right-to-sue notice to proceed to court, while others ask the agency to investigate. In either path, attach evidence to your intake. Agencies see thousands of complaints; those with timestamps and attachments get cleaner traction. For employers, respond with a complete position statement that includes policies, training proof, the investigation timeline, and preserved documents. If you plan to assert a defense that no one reported internally, be ready to show the reporting channels were clear and accessible.
Arbitration agreements, class waivers, and evidence realities
Arbitration changes procedure, not the need for proof. Discovery is often narrower, but arbitrators expect well-preserved evidence, and they will enforce legal holds. For plaintiffs, that means choosing which custodians and datasets matter most and targeting them early. For employers, that means not hiding behind narrow discovery rules after letting data roll off servers. Arbitrators often view spoliation through a common-sense lens: if you knew and you could have saved it, why didn’t you?
Bringing it together: why diligence wins cases
California workplace sexual harassment laws cast a wide protective net, from FEHA sexual harassment standards to training mandates and anti-retaliation provisions. Within that framework, proof is the lever. Employers protect themselves sexual harassment california by preserving early, investigating thoroughly, disciplining appropriately, and documenting every step. Employees protect their claims by capturing messages, memorializing events, identifying witnesses, and filing timely with the CRD or EEOC.
Delay is the enemy. The most preventable losses I have seen trace back to inaction during the first two weeks after a report. Security footage overwrote itself. A manager turned in a company phone and IT wiped it on intake. A complainant replaced a cracked phone and lost the original texts. Small oversights in that window became large consequences a year later in front of a mediator or a jury.
Invest in preservation at the first sign of trouble. Treat spoliation like a real risk, because judges do. Whether you are an employee facing unwanted advances or an employer responsible for a safe workplace, your best ally is a clean, durable record. It is the difference between a he said, she said stalemate and a case that persuades.