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. Cases often turn on circumstantial evidence, which may be powerful and convincing. 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. If you were wrongfully terminated for reporting sexual harassment or participating as a witness in a sexual harassment related investigation, you may also need to speak to a sexual harassment lawyer.
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.
Generally, you must show that the sexual harassment changed your work conditions by making it more difficult for you to perform your job. Sexual harassment may give rise to a legal claim if it is severe or pervasive. In some cases, a single incident may also create a hostile work environment even though it is not extreme. Whether the work environment is altered by the sexual harassment is determined based on all the circumstances.
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 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 is protected from retaliation even if he or she may ultimately 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 collaborating evidence.
Recordings, Text Messages, the Paper Trail
A written or recorded trail of evidence of sexual advances, sexual images, or improper sexual comments is 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 may also be 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. Often employees that cannot afford the cost of therapy rely on their primary care physician who may also prescribe medication to help you deal with anxiety and depression as a consequence of harassment. The more contemporaneous reports and documentation of sexual harassment you have, the better.
So if you are unable to rely on Human Resources, let your co-workers, medical providers, and family know what is going on. Keeping a journal of events may also be helpful.
Witnesses and/or Other “Me Too” Victims
If you were sexually harassed, there may be other victims. Co-workers who have been there longer than you may know of names. Former employees may also be a resource of information. We may also find other victims by researching the company’s litigation history.
Evidence that Supervisors or HR Knew or Should Have Known of the Harassing Conduct and Failed to Take Immediate Action
Evidence of communications from you reporting, resisting, or objecting to sexual harassment is also relevant to show not only that the harassment was unwelcome but also that the employer was aware of it. Employers often deny receiving verbal complaints to justify not taking appropriate action. 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.
Moreover, a company is strictly liable if a supervisor engages in harassment. However, if the harasser is a non supervisory 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 is also one way of showing that the harassment was unwelcome.
Evidence that the Company Condoned Harassment
Document and pay attention to how your employer responds to your complaints of harassment. An employer has a legal duty to prevent sexual harassment, by including but not limited to, investigating your complaint in a fair manner and taking remedial action if necessary.
The employer must comply with California’s mandate to take action to prevent sexual harassment. Refusal to do so may give rise to an additional claim of failure to prevent sexual harassment and may also give evidence that the employer condoned the sexual harassment.
Document Conversations and Events 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 employer intends to take to protect you from harassment. These correspondences are also relevant to show that you were cooperating with any investigation and that the employer had notice of your complaint of harassment.
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.
The foregoing is not an exhaustive list of evidence you may need. If you are sexually harassed or sexually assaulted at work, we encourage you to begin building a file of evidence intended to protect you. You should also speak to a sexual harassment lawyer to have an advocate in your corner. A sexual harassment attorney may help you identify relevant evidence and navigate a difficult situation. We look forward to speaking with you.