How to Prove Sexual Harassment

How to Prove Sexual Harassment

Unfortunately, sexual harassment in the workplace is an all too common occurrence, with as many as 38% of all women and 14% of all men reporting such experiences. Thankfully, there are protections in place that one can turn to, including filing a claim, but how do you prove sexual harassment in the workplace? 

Successfully demonstrating that you have been a victim of harassment requires detailed proof and promptly filing a legal complaint. You do not want to take these challenging steps without a reliable lawyer. 

Join us below as we look a bit closer at the various elements that go into making these claims and the kinds of evidence that can help you and your attorney achieve the outcome you deserve.  

The Role of Documentation In Proving Sexual Harassment

To establish a claim for sexual harassment, you must demonstrate each of the following:

• You belong to a protected group.
• You were subject to unwelcome harassment.
• The harassment was based on your sex.
• The harassment was severe or pervasive enough to change the conditions of your employment and create a discriminatory environment.

Gender is a protected category and you do not have to present evidence for that. However, you will need to provide documentation demonstrating the other key elements involved in a sexual harassment claim. 

A common problem is determining whether a single comment constitutes harassment. While one comment may not be sufficient on its own, documenting every instance of inappropriate behavior, including the time and location, can help build a strong case.

You must keep careful and detailed records of all of the conversations and interactions you have had with the harasser via email, text, or in person. Proof that you asked your harasser to stop and that they did not, as well as showing that the harassment affected your work, is also crucial. 

Ultimately, maintaining a file with any correspondence containing lewd, sexual, or otherwise disturbing content in one place will make it easier to present your case when filing a claim 

Direct Evidence vs. Circumstantial Evidence: Understanding the Difference

An important aspect of proving sexual harassment is understanding the difference between direct and circumstantial evidence. Both types are important in these kinds of claims.

Direct evidence of sexual harassment is tangible and points toward instances of sexual harassment. Usually, direct evidence involves the following:

• Texts
• Memos
• Voicemails
• Emails
• Photographs
• Videos
• Documents
• Eyewitness statements

Direct evidence is the most straightforward way of proving that harassment occurred. For example, if your employer told you via text message that they would fire you unless you engaged in an unwanted sexual act, the text would be evidence of direct quid pro quo harassment. 

Sexual harassment, however, is not always a clear and obvious, one-time occurrence that you can point to. Often, it involves repetitive and pervasive harassment that is more difficult to demonstrate than direct evidence. This is where circumstantial evidence comes into play. 

Circumstantial evidence is indirect evidence that implies the occurrence of sexual harassment based on surrounding circumstances. It can include witness accounts and patterns of behavior.

For instance, if your employer didn’t explicitly threaten you but fired you the day after you refused an unwanted advance, the timing might serve as circumstantial evidence, indicating a link between the two events.

It is important to keep in mind that it can be quite difficult to win a sexual harassment claim relying solely on circumstantial evidence. Still, it can be a valuable complement to direct evidence. 

Engaging Witnesses: Strategies for Gathering Testimonies

Witnesses can play a crucial role in cases where direct evidence is limited. They can objectively view what happened and corroborate what you have experienced. However, obtaining witness cooperation can be challenging due to fears of retaliation.  

With this in mind, you will want to gather witness testimony as soon as possible after an instance of harassment occurs, but you need to do so carefully. Witnesses may be just as upset as you are, and often they want to ensure you do not reveal their name to the employer. It’s important to respect their wishes.. 

Another challenge in gathering witness testimony is that witnesses may not recall all the details of the incident, which might make them hesitant to testify out of fear of making a mistake. By reaching out to them promptly, you can help mitigate these concerns, as the incident will still be fresh in their minds.

Using Digital Evidence: Emails, Texts, and Social Media

Preserving digital evidence is paramount in workplace sexual harassment claims. Social media posts, emails, and text messages can all be used as evidence if they are relevant. If you receive harassing messages or comments on social media, screenshot everything. 

You must also safeguard any evidence you have and avoid altering it. Save text messages and take screenshots of other forms of digital communication to prevent the harasser from deleting any evidence later. If you receive harassing messages on your work email, forward them to your private email to preserve them. In instances when a camera may have captured evidence of sexual harassment, get a copy of the video as 

soon as possible. 

When you save these items, do so in various locations and password-protect the files, if possible. While using the cloud can seem convenient, it is not impervious to cyberattacks.

Through (and perhaps despite) all of these efforts, you must keep in mind that a possible argument you may face is that people should have a “reasonable expectation of privacy” when using social media under the Federal Stored Communications Act (“SCA”).

The Significance of a Well-Documented Timeline

Creating a clear and well-documented timeline of when the harassment began can significantly strengthen your claim. It is particularly important in situations where pervasive harassment has escalated over time.

A well-documented timeline will also help you prove any kind of retaliation that may take place after reporting the harassment. It allows you to show the connection between your complaint and your employer’s adverse action against you. 

One of the most effective ways of building your timeline is to do so digitally via your phone, tablet, or computer. Record as much information as possible, including the time and location of the harassment, what the harassment entailed, and whether there were eyewitnesses. If there were, write out their names fully to avoid confusion later on. If you speak with them right after the harassment occurs, document anything they say as well. 

Overcoming Retaliation: Protecting Yourself and Your Career

After speaking out about sexual harassment, you may experience retaliation, which refers to an employer or supervisor taking adverse actions against you. 

The most common forms of workplace retaliation include the following:

• Low-performance evaluations
• Reduction of work hours
• Reduction of pay 
• Denying promotions
• Demotions
• Terminations

A more subtle form of retaliation is withholding valuable information, including feedback, to ensure it does not result in performance issues. Being ignored during meetings or having damaging rumors spread can also be retaliatory actions.

One of the first things you can do if you face retaliation is to let your human resources department know. At the very least, reaching out to them will leave a written record of your concerns, but providing as much evidence as possible will allow those in HR to fully investigate the matter.

If HR is unhelpful or if the harassment and retaliation get worse, you have the chance to make an official report with a government agency. And if that does not work, filing a lawsuit is the next option. 

Filing a Legal Complaint: Timing and Jurisdiction Considerations

The Equal Employment Opportunity Commission (EEOC) is a federal agency that protects employees from sexual harassment in workplaces with 15 or more employees. The EEOC generally gives victims 180 days to file a charge, beginning with the day the harassment occurred. 

The EEOC maintains an online portal where you can file a charge or schedule an interview with the commission. Before you start, though, you’ll need to answer a few questions to ensure that the EEOC is the right agency for your claim. In Florida, you can file a charge in person in the EEOC office in Miami.

You can also file a charge via state agencies, such as the Florida Commission on Human Relations (FCHR). You have 365 days to file a charge. If you have already filed with the EEOC, you cannot do so through a state agency like the FCHR.

The Importance of Legal Representation in Sexual Harassment Cases

The process of filing a charge of sexual harassment is complex and stressful and made more daunting by the fact that your employer will most likely have at least one lawyer working to discredit you.

By turning to an employment lawyer, you will gain an advocate with crucial experience in these kinds of cases. They will have a good idea of the evidence that will make a difference and can help you gather them all safely and in a way that presents the clearest picture of what happened. 

Your lawyer will also help you navigate the legal process in its entirety, ensuring that you do not miss any deadlines and that all paperwork is filed properly. During depositions and in court, your lawyer will advocate for you in the most effective ways possible. 

Most importantly, your lawyer will also act as a pillar of support during these difficult times. Rather than handling the stress of harassment and the complexities of filing a charge on your own, you can focus on emotional healing while your lawyer manages the legal aspects of your case.

Partnering With Wenzel Fenton Cabassa, P.A.

At Wenzel Fenton Cabassa, P.A., our Florida workplace sexual harassment attorneys are here to provide guidance through all forms of workplace sexual harassment claims. We dedicate ourselves to protecting client rights and preserving their dignity as they file these charges. Let our team help you get the justice you deserve. Contact us today for a free consultation.