What can I do to prove that sexual harassment took place if there were no witnesses?
UPDATED: September 11, 2018
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Not to be cliché, but sexual harassment—whether physical or verbal—often comes down to a he-said, she-said situation if there aren’t any witnesses to the alleged harassment.
That doesn't mean that you can’t succeed on your claim—people can and do win cases based on nothing more than their testimony as to what occurred. There are two keys to being successful:
(1) following all the proper steps to present your claim, and documenting that you did; and
(2) being as credible (believable) as possible.
You can also enhance your chances of success with any correspondence or documentation corroborating your position when it's available, but you can win without it.
- Quid pro quo (basically “something for something”) harassment involves conduct in which someone's job directly depends on his or her willingness to engage in sexual behavior. For example, if you are told you'll get a promotion if you go out on a date with your boss or have sex with him or her, or make romantic gestures to your boss, that is quid pro quo sexual harassment. It is even quid pro quo harassment if the exchange of job benefits for sex is implied rather than stated in so many words. For example, the women who get ahead in your company are those who date or have sex with the boss, even if the boss never says that’s what you need to do.
- Hostile work environment claims, on the other hand, are based on conduct where someone is consistently made uncomfortable at work because of his or her gender, even if the actual terms of the job aren't changed and even if it is not the boss making the employee uncomfortable. Being frequently exposed to unwelcome comments about appearance, to pornographic images, to obscene comments about one’s love life, to dirty jokes, to repeated requests for dates, to discussions of sexual conquests, etc. are all examples of hostile work environment harassment. It should be pointed out, however, that a single isolated incident is probably not harassment, but could cross the line if it is extremely outrageous and egregious.
Steps to Stop Harassment
Person-to-person engagement: It is not a bad idea to first privately speak with the individual about the inappropriate behavior. It is possible that the individual whose behavior you find offensive does not realize that his or her behavior (i.e., off-color jokes, standing too close, a gesture) is offensive. It is reasonably likely that an admittedly uncomfortable or awkward conversation, telling the harasser/co-worker that you find his/her actions inappropriate and not welcome, could end the behavior. (Make sure to jot down and date the conversation and what was said in case your overture does not end the harassing conduct.)
Company intervention: In terms of laying the groundwork for a sexual harassment case, you have to do your part. The first thing is to make the company aware of the problem and give it a chance to look into and stop the harassing behavior.
An employer is not liable when an employee (even a manager) first harasses someone. This makes sense, since the employer can’t predict harassment in advance or control what someone does or says. However, once you tell someone “in charge” about the inappropriate behavior, the employer’s obligation is to promptly look into complaints, investigate them, and take reasonable steps to ensure the behavior stops. It is the failure to take action to prevent and fix these things that can make the employer liable.
Therefore, you must come forward and notify your employer of the offending harassment. If you don’t, you failed to give them a chance to intervene and the employer will not be liable, no matter how egregious the behavior. If the company has an official anti-sexual harassment policy, go through the steps outlined for reporting the event. That way, the employer cannot later claim that your complaint never reached the right ears, which is why it was not acted on. A failure to follow the employer’s internal procedures will negatively impact your ability to bring a sexual harassment claim, since the employer can justifiably point out that you did not give them the proper or fair chance to respond.
If your employer does not have a written policy (or a company website detailing its policy), report it to your supervisor (unless he or she is the harasser, in which case you report to his or her own supervisor or manager) or to your on-site Human Resources (HR) department. Where there is no one to report the harassment to—for example, your harasser is the president or CEO and there is no effective HR department—talk to another manager and ask for help.
Credibility: You do everything you can to be credible.
Some aspects of credibility you can’t control. Some people just inherently come across as more believable than others.
But other aspects of credibility are under your control. For example, jotting down specific details of what happened, when, where, what was said, who was present, etc. will make your case much more credible. Details make it seem like you actually experienced what you said you did; on the other hand, vague, fuzzy allegations hurt your credibility. So take notes about everything. Take notes about the harassment; take notes about your efforts to report it; document any conversations with the individual and every fact relating to the harassment.
Tracking offensive behavior: Create a paper trail, when you can. If you report harassment, even if you start with an in-person conversation, follow it up with an email, so you can prove what you said, to whom, and when in reporting the harassment. If you have a meeting or discussion with someone about your complaint, write up your notes of the conversation later that day in as much detail as you can recall and email them to the manager or HR representative with whom you met. If the recipient doesn’t dispute what you put in writing, that implies that your account of what was said is accurate.
Keep—and print, to make sure it isn’t deleted—any communications (e.g. text messages, emails, postings on social media accounts, including images, etc.) from the alleged harasser which support your claims. Even if he or she is smart enough to not put anything too incriminating in writing, the mere fact of a co-worker or manager having an inappropriately or unusually high number of communications with you can suggest inappropriate attention or motives. If you are sent dirty jokes or images, keep and print them, too—even if doing so makes you uncomfortable, doing so is worth it. And if you receive a written response to your complaint from HR or management, make sure to keep and print that, too.
Faced with Sexual Harassment: Getting Outside Help
Sexual harassment cases can be more difficult than many other kinds of cases, such as cases involving car accidents or unpaid bills, because so much depends on the recollections and credibility of two people—victim and harasser. The advice above will help you build your case, but you can further help yourself by letting an expert assist you. Contact a lawyer who has experience in sexual harassment matters to advise you on the merits of your claim and what evidence is needed to file a private lawsuit.
If you are dissatisfied with the employer’s lack of action about the reported event, you may also want to register a complaint with your local office of the EEOC (Equal Employment Opportunity Commission) or your state’s civil/equal rights agency.