How to prove sexual harassment at work?
A case can be proven with direct evidence. However, sexual harassment is coercive. Most instances of sexual harassment are not out in the open. Harassers act covertly to avoid detection because they know what they are doing is wrong. A jury must give circumstantial evidence the same weight as direct evidence. Because all cases hinge on individual facts, we can help you identify evidence relevant to your situation.
Speak to a sexual harassment lawyer before you leave your job.
Understanding What Qualifies As Evidence Of Sexual Harassment
In addition to the information provided on our sexual harassment page, the following is a general overview of what qualifies as evidence of sexual harassment.
The harassing conduct must be (1) severe or (2) pervasive as to (3) alter the conditions of the victim’s work environment and create an abusive environment.
A single incident of sexual harassment may be sufficient if the harassing conduct has unreasonably interfered with plaintiff’s work performance or created an intimidating, hostile or offensive working environment.
You may also have a claim for sexual harassment if there was a series of incidents over a period of time that were so frequent as to create an abusive work environment. For example, pervasive sexual harassment was shown by supervisor’s constant sexual remarks about plaintiff over a two-year period, calling her “gorgeous” and “beautiful” rather than by her name, telling her about his sexual fantasies and his desire to have sex with her, commenting on her “ass,” and asking over a loudspeaker whether she needed help changing her clothes.
These examples are not exhaustive. There are many more scenarios that qualify as illegal sexual harassment. Speaking to an attorney is your best option.
Workplace Retaliation following Sexual Harassment
No need to wait to report sexual harassment until the work environment becomes unbearable. California law also prohibits companies from retaliation against you for reporting sexual harassment so long as you acted in good faith and had a reasonable basis for suspecting sexual harassment. A whistleblower reporting sexual harassment may be wrong, so long as he or she acted on a reasonable based suspicion.
Proving Sexual Harassment Happened to You
Below is an overview of some evidence that may be helpful to prove your claims:
Your Story, Your Truth Matters
Do not be discouraged simply because there is an element of he said/she said. A skilled lawyer can help you build your case and find a collaborating evidence.
Recordings, Text Messages, the Paper Trail
A written or recorded trail of evidence of sexual advances or improper sexual comments is obviously helpful. Written communications devoid of explicit sexual material may also collaborate your story. For example, repeated invitations to have dinner or drinks may be relevant. Evidence that the harasser ignores your work-related emails after rejection preventing you from doing your job is also relevant.
Correspondences With Co-Workers, Medical Providers, Family
For some, it is natural to confide in co-workers. Co-workers often share private experiences via text messages, group chats, email, etc. For example, a female experiencing harassment confided in her co-workers during a group Slack chat. In response, multiple women shared their personal experiences with the same harasser. They also shared their observations of how he treated the victim collaborating her story.
The stress of sexual harassment may have physical and/or mental manifestations requiring you to seek medical attention. Your medical provider may document that you reported sexual harassment and needed medical treatment as a consequence thereof. The more contemporaneous reports and documentation thereof you have, the better.
So if you are not comfortable going to Human Resources, let your co-workers, medical providers, and family know what is going on.
Among other examples, an employer can indirectly impact your career trajectory by relegating you to undesirable assignments while passing coveted accounts or projects to your younger counterparts.
Witnesses and/or Other “Me Too” Victims
If you were sexually harassed, there are may be other victims. Co-workers who have been there longer than you may know of names. We may also find other victims by researching the company’s litigation history.
Evidence that Supervisors or Agents (HR) Knew or Should Have Known of the Harassing Conduct and Failed to Take Immediate Action
A company is strictly liable if a supervisor engages in harassment. However, if the harasser is a nonsupervisory employee, employer’s liability turns on you showing that the employer knew or should have known of the harassment and failed to take appropriate corrective action. As such, if you are harassed by a co-worker you must show that the Company had notice of harassment. A complaint of sexual harassment satisfies the notice requirement.
Under California law, a Company must treat verbal complaints of sexual harassment the same way as written complaints. We recommend that you take the extra step of reporting incidents in writing regardless of whether the harasser is a supervisor or a co-worker. Reporting complaints in writing may also show that the harassment was unwelcome.
Company Condoning Harassment
Document and pay attention to how the Company responds to your Complaints of harassment. A Company has a legal obligation to prevent sexual harassment, by including but not limited to, investigating your complaint in a fair manner and taking remedial action if necessary.
Once you report sexual harassment, the ball is in the employer’s court to comply with California’s mandate to take action to prevent sexual harassment. Refusal to do so gives rise to an additional claim of failure to prevent sexual harassment. Employer’s refusal may also evidence that it condoned the sexual harassment.
Companies often deny ever receiving verbal complaints or fault victims for not following procedures to try to justify not doing anything.
In reality, victims are already in a vulnerable and humiliating situation and thereby find confiding verbally a more natural way to express their feelings. Although the law does not require you to take the extra step of complaining in writing, it is a good idea to do so because such documented evidence is relevant to your claims.
Document Conversations by Sending Emails
Employers try to avoid a paper trail. After a conversation, send a follow-up email summarizing/documenting the conversation and the steps the Company intends to take. These correspondences are also relevant to show that you were cooperating.
Good Job Performance
Keep records of your good job performance. A harasser intent on retaliating against you may try to push you out of your job by characterizing you as a bad performer or difficult to work with.
If you are sexually harassed at work, we encourage you to begin building a file of evidence intended to protect you and your professional reputation. You should also speak to a sexual harassment lawyer to have an advocate in your corner. We look forward to speaking with you.