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How Can I Prove My Sexual Harassment Case?

There are generally two types of sexual harassment cases:  quid pro quo cases and hostile work environment cases.

Quid pro quo sexual harassment cases occur when an employee is offered an employment benefit in return for the employee’s participation in unwanted sexual conduct. For example, when you are offered a raise or a promotion if you sleep with your boss. Quid pro quo sexual harassment can also occur when you are threatened with the denial of an employment benefit unless you participate in unwanted sexual conduct. For example, when you are told that you will not get a promotion or raise unless you sleep with your boss.

Hostile work environment claims, on the other hand, do not involve an exchange of sexual favors for employment benefits. You may have a hostile work environment claim if you were subjected to unwanted sexual comments or conduct that was severe enough to create an intimidating, hostile, or offensive work environment. Unlike quid pro quo claims, hostile work environment claims usually require evidence of a pattern of harassing conduct over a period of time.

What Types of Evidence Are Used to Prove Sexual Harassment Cases?

Courts consider two types of evidence when deciding sexual harassment cases:  direct evidence and circumstantial evidence.

Direct evidence includes emails, audio recordings, memos, and testimony about conduct that occurred or statements that were made.  For example, emails containing sexually explicit jokes and your testimony that you were propositioned by your boss are direct evidence of sexual harassment.

Circumstantial evidence can be a very important part of the evidence used to prove your case.  It may be possible for the judge or jury to infer that sexual harassment occurred from all the circumstances, even without direct evidence.

Here is an example of circumstantial evidence:  Your supervisor asks you to go home with him after an office party.  He does not explicitly say that you have to go home with him in order to get a promotion, but when you decline, someone else gets the promotion that you should have received.  If the denial of your promotion occurs shortly after you refused to go home with your supervisor, that may be circumstantial evidence of quid pro quo sexual harassment.  And if your supervisor continues to ask you to go home with him after you decline, that may be evidence of a hostile work environment.

What Happens in a Case of “He Said/She Said”?

Many sexual harassment cases involve conflicting testimony.  You say that your supervisor asked you to sleep with him or made sexually offensive comments in the workplace.  He denies ever making the comments or request.  Who the jury believes often depends on the details, corroboration, and circumstantial evidence.

Judges and juries consider details when deciding whose testimony to believe.  Does the witness remember the exact words that were used and when the offensive statements were made?  Or are they making general accusations without any details?  Is the witness’s testimony today consistent with what they said in the past?  Or have they changed some details in their description of the events?

A good way to help your case is to keep contemporaneous notes that can be used to refresh your recollection of events.  As soon as possible after an offensive incident, write down exactly what happened, what was said, who said it, where it happened, what day and time it happened, and who else was present or nearby.  This will help you refresh your recollection of events.

Corroboration and circumstantial evidence are also important.  Obviously, another witness who saw or heard what you saw or heard can be very powerful corroboration.  A witness who saw that you were upset immediately after the incident can also provide helpful testimony, even if they did not see or hear what happened.  The fact that you were upset immediately after speaking with the harasser may be circumstantial evidence that supports your testimony.

You can help your case by creating a record. File a formal complaint with human resources or another supervisor.  Talk to a close friend or relative about how the harassment made you feel.  Consult with a psychologist, psychiatrist, counselor, or social worker.  Consulting a professional can help you get through this difficult time.  What you say to others when the events happen may help prove your case and support a claim for emotional distress damages.

If you have suffered from sexual harassment in the workplace, you should consult with an experienced sexual harassment lawyer to protect your rights. John Howley, Esq. has represented clients in sexual harassment cases for more than 27 years.  To schedule a free and confidential consultation, call him directly at (212) 601-2728.

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