I’ve Been Sexually Harassed; What Evidence Do I Need to Prove My Case?


The Issues

Potential clients often call us with stories of sexual harassment or inappropriate behavior at work. These narratives may include descriptions of a really “handsy” supervisor, or crude comments by a co-worker.  People also describe “harassment” that isn’t unlawful at all.  Whatever their stories, people call us with the hope that we may be able to help. Many of these callers have been recently terminated, or feel they are about to be. There is nothing worse than to be treated miserably at one’s job. So what can be done under the law?

As the ones on the receiving end of bad treatment by an employer, victims naturally want to obtain some form of justice. We all want to feel there is a balance to the world – that those who have the power to disrupt our lives can be held accountable for their bad behavior. With employer behavior ranging from unpleasant to unlawful, how can one discern what might be crossing the line? And if it comes down to it, what do they need to prove it in court? How do you get the evidence?

Preparing a Case

Prepare your case in a way that will interest an attorney. Keep in mind attorneys must invest time and money to help you. Begin to think about how to accomplish this, long before you know you may need legal representation. Thoughtful preparation is the key to a successful sexual harassment claim.

It’s important to know that before you can file a sexual harassment claim, you must:

  1. Find out what your company’s sexual harassment policy is, and report the incident.
  2. Assist in any investigation your employer conducts
  3. Give the employer time to correct the problem by addressing the actions of the harasser

The point of this exercise is to allow employers an opportunity to deal with bad behavior. To be fair, some employers will take all steps necessary, up to and including termination of employees who create hostile work environments, to make the work environment better. If, however, upon completion of your employer’s investigation, the situation isn’t remedied to your satisfaction, or worse, if the behavior continues, then you may wish to contact an attorney to resolve it for you.

What is Sexual Harassment?

Everyone knows what they think sexual harassment is. For the most part, they’re generally right.  At the same time, from a legal standpoint, there are essentially two types of sexual harassment cases. The first is when anyone in a position of power over your job or career, communicates that they wish you to perform any kind of sexual favor that you do not want to perform, in order to obtain some form of benefit or reward on the job. This is called quid pro quo sexual harassment.

The other type is called a hostile work environment claim. It does not involve an “exchange” of sexual conduct for benefits, but instead requires the employee to prove that they were subjected to pervasive and unwanted sexual conduct severe enough to create an intimidating, hostile or offensive work environment. Examples include receiving pornographic emails, or suggestive texts from co-workers or a supervisor. It is the harder to prove of the two types of claims, because judges’ rulings vary wildly on what they believe meets that standard. There are cases where a single act was found to be so offensive that the multiple-instances standard was not required, but they are rare. Usually, a claim of this kind will only prevail after there have been repeated instances of harassment.

Collection of Evidence in Sexual Harassment Cases

Whether you have a quid pro quo claim or a hostile work environment claim, there are some useful do’s and don’t’s when it comes to collection of evidence while still on the job.

  • When you do complain to HR, put your complaint in writing. Give it a title that says something like “Formal Complaint of Sexual Harassment.” That way, they can’t claim later that you only reported general harassment or bullying.
  •  Write down everything that was said or done when you were singled out for harassment
  •  Keep copies of anything used by your harasser to intimidate you. For example, if you were sent pornographic materials over company email, print them out or forward them to a personal email. Be sure when you take any copies of evidence, take care that no sensitive company information is contained on anything you make copies of, and store any evidence you may collect on your private devices to prevent its disappearance if the company runs across it.
  •  If you are retaliated against for reporting the sexual harassment, make sure to put those facts in your record. Employees are often denied raises or promotions after complaining of unwanted sexual behavior in the workplace, so don’t leave anything out that might relate back to your case.
  •  Go over your notes to see if there are any facts you may have missed. Try to recall dates, who made a particular statement, any witnesses, and give as much detail as you can provide. If you don’t recall an exact date, do the best you can. Write it all down so you remember, especially what was said to you that you found offensive and in what context.
  •  If you attend a company meeting to discuss your complaint, take good notes of the questions asked and the answers you gave, and keep those for your attorney should you eventually need to hire one.
  •  Union members should keep their representatives informed of each action taken by the employer. It will help them better advocate on your behalf.
  •  If you have already hired an attorney, keep in mind that your employer’s attorney cannot question you without your attorney present. Yes, just like on TV. But if your employer wants to meet with you directly without their attorney, you do not have a right to insist that you have your attorney present.
  •  Be polite, but don’t be intimidated. Stick to your story. If the employer, or someone from HR, tries to get you to “soften” the facts, don’t cave in.
  •  It you need to add something later that you forgot to mention at the meeting, do so in writing. Copy everyone in attendance, so you will later have proof that you informed them of the missing information.
  •  Make sure to ask for a copy of the official report of the investigation by your employer after it has been prepared.

Who Experiences Sexual Harassment and Gender Discrimination?

Sexual harassment knows no occupational boundaries, and many women who experience sexual harassment never report it. It can happen anywhere at any time, and it is up to those who experience it, to speak out when it does. These things can only exist in an environment where we permit them to continue.

When participating in a recent survey, one woman vented her frustrations at being constantly hit on at work: “[I] am here to talk to you about work, not about a date, not about whatever else and I sometimes wonder as a young woman,” she said. “Do you assume that I am out here looking for my life partner at my next 3 o’clock meeting? And would you feel differently if I had on a wedding band or an engagement ring? Would it allow you to shut that door and only look at me as a fellow professional?”  No one wants to be objectified in her career, but somehow that message can get lost in the workplace. It’s up to women everywhere to change it.

Most acts of sexual harassment go unreported but you don’t have to remain silent! If this is happening to you, do something about it. Collect your evidence and gather your courage. Still have doubts about how to prepare? Take a look at this checklist.  When you’re ready, give us a call. We’re here to help you find a voice.

Lazear Mack, LLP
Employment Law Attorneys
436 14th Street, Suite 1117
Oakland, CA


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