Proving sexual harassment or sexual assault: Documenting a harasser’s misconduct

Sexual harassment in the workplace can happen to anyone. Unfortunately, proving incidents of sexual harassment can sometimes present obstacles for victims.

To comply with industry standards, most employers task an in-house or third-party investigator to generate a workplace investigation report concerning the harassment. However, these investigators are also mere paid employees and the employer would not want any controversy stemming from an investigation report that concludes the presence of unlawful harassment in their business.

Another obstacle involves the lack of cooperation by other employees in the workplace who are possible witnesses to these incidents. Out of their desire not to “bite the hand that feeds them,” they downplay or pretend not to know about the sexual harassment they witnessed.

Thus, these investigation reports often boil down to a he-said-she-said situation where a victim’s word is pitted against that of the harasser. Moreover, all the investigators can come up with are statements from current employees who – fearing for their job security – decline having seen anything. This makes it harder for both the employer and the authorities to investigate the incident.

To avoid this issue, victims are encouraged to document everything as it happens. Documentation is an integral part of proving a harasser’s misconduct because it adds more weight to the victim’s case. On top of this, victims should contact a lawyer as soon as possible so that a new investigation can begin, albeit, confidentially.

What do victims need to document?

Documenting helps to provide context and guide the investigation. The more detailed your recording of instances of harassment, the better it is for your case. Take note of the exact time and place of the incident. Other information you should try to include are:

  • All comments made by the harasser
  • Any harmful action done by the harasser
  • Texts, memos, emails, and social media posts
  • People involved (i.e., the harasser and potential witnesses)

When taking down notes, it’s best to be specific. Write down the exact remark and/or action of the harasser, as well as the time and location. Accuracy is important when investigators are double-checking facts.

It’s okay if you can’t remember the exact details, but do try to get as close as you can to it. Contextualize the incident by saying it happened “before lunch” or “days after a company retreat” to create clear time markers.

Tips when documenting a harasser’s misconduct

To effectively build a strong case against the harasser, victims must be as precise as they can be when documenting and recording incidents. Follow these tips when documenting a harasser’s misconduct:

Write it down as soon as it happens

While it’s still fresh in your mind, it’s best to put down in writing the details of the incident immediately. If you wait longer, you might forget key information or have a more difficult time recalling details of what happened.

Remember that in most workplaces, it is extraordinarily rare for harassment to be caught on company security cameras. Most harassers will naturally be smart enough to refrain from harassing anyone where they know a security camera is pointing. You and witnesses among other coworkers are the only ones who can stand in place of a camera in documenting these incidents. So, it is important to get everything written down in black and white soon after the deed takes place with as much detail and accuracy as possible.

Screenshot or print out messages

If a harasser sends soliciting, inappropriate, or even threatening or derogatory messages or images, take screenshots or print these out. Make sure to save the date and time these were sent to you. They can serve as a backup in case the harasser deletes their messages.

Keep everything in one place

Have all your notes in one notebook, file, or application on your phone. If your phone is the only place where you are storing this information, make a backup of all this information as soon as possible. That way, backup files sent to your email account, a data storage facility, your computer, or any other digital form of storage can be easily retrieved and printed out. Access to these files will be easier and this method can help you track all the incidents.

Reporting sexual harassment or sexual assault

There’s no better recourse to workplace sexual harassment than to file a formal complaint. If your company is complying with California’s laws regarding the prevention of sexual harassment in the workplace, there should be a robust anti-harassment policy in place that must be disseminated to all employees.

When reporting within the company, you should alert your immediate supervisor or another supervisor who you are comfortable reporting to, or you can go straight to the human resources department. Best to write an email so that the time, date, and substance of the complaint can be forever recorded. Make sure to print out or forward a copy to your personal email so you can retain a copy for yourself.

As mentioned earlier, be as detailed as you can in your complaint to avoid some unscrupulous employers “playing dumb” if your complaint is vague or too broad. For instance, if an employee grabbed your buttocks at work, state that in your email and mention that it was sexually offensive. If instead, you only write that there was “inappropriate conduct” by another employee, an employer who may want to avoid liability can claim that they did not understand that this complaint was referring to sexual harassment and thus, did not feel compelled to investigate. While such arguments by employers are usually seen as meritless, you can avoid the argument altogether by making your complaint specific and explicit.

If for some reason, you have to take further action against your employer, contact a lawyer before even going to the Equal Employment Opportunity Commission (EEOC) or the Department of Fair Employment and Housing (DFEH) to file a complaint. That way, your lawyer can help you navigate through the tedious processes of these government entities.

Some lawyers will be able to represent you on a contingency basis. That means, you do not pay them out of pocket and, instead, pay them only if and after receiving monetary compensation from the employer or sexual harasser.

Challenges of proving sexual harassment

Sexual harassment cases can present victims and employers with unique evidentiary issues. However, properly documented evidence can ease some of these problems, especially in a civil lawsuit because the burden of proof is low.

In civil court, a victim of sexual harassment only needs to prove her claim by a preponderance of the evidence. Unlike in criminal court where the case must be proven beyond any reasonable doubt in order to convict, here, the jury only needs to find that the harassment “probably” happened. It is for this reason that documentary evidence and other coworkers’ statements are important because these can help tip the scales from a 50-50 (he-said, she-said) to a 51%-49% in the victim’s favor.

That said, a sexual harassment or sexual assault civil case is not without its legal challenges. Here are common legal challenges victims and their legal counsel face when gathering evidence:

  • Denial that the sexual assault or harassment occurred – Employers and sexual harassers often try to deny committing the alleged sexual touching, assault, comments, or conduct.

  • Downplaying the harassment or assault – Companies and employers will sometimes argue that a “reasonable person” in the victim’s shoes would not have felt harassed or offended by the conduct. This type of defense rarely works, although it’s used in cases where the harassment is very mild and infrequent.

  • The issue of consent – The argument some employers and companies will make here is that the victim “consented” to the abuse because they put themselves in that situation. However, this particular defense will not work well if the harasser or abuser is in a position of power over the victim, e.g., the victim’s boss, teacher, indirect supervisor, or counselor.

  • Previous sexual assault – Prior sexual assault by the accused of the defendant may be used to show motive. However, it can’t be used to prove the inclination to commit assault.

Hire a sexual assault attorney

Reporting or filing a sexual harassment case is a complicated process. For victims, it can be one of the most vulnerable moments in their life.

If you have become a victim of sexual harassment in your place of work, protect yourself by getting appropriate legal counsel.

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