By Ricotta & Marks, P.C. on August 20th, 2021 in
How Can I Prove Sexual Harassment At Work? Sexual harassment is pervasive in the workplace, as evidenced by the large percentage of men and women who report such incidents annually.
Before 2019, New York state legislation required sexual harassment to be “severe or pervasive” in order to be considered unlawful. Now, “petty slights or trivial inconveniences” are also acknowledged as sexual harassment under the law. This has severely reduced the burden on sexual harassment victims, who formerly needed to prove that harassment was consistent, severe, and debilitating to be successful in courts.
Due to this change in legislation, much less is needed to prove sexual harassment at work. As many harassers deny their behavior, proof is incredibly important in sexual harassment cases. Maintaining proof can take the form of:
- Keeping detailed records of harassment: Make notes of any conduct, language, or actions that you consider harassment. Write down any occasions in which you are treated differently than your coworkers or when a crude and/or inappropriate comment was said to you. Write the date, time, location, and any available witnesses who saw the interaction. Also, protect your notes. Do not leave them out in a public space. Keep them hidden and private.
- Saving communication from the harasser: An excellent form of proof in sexual harassment lawsuits is actual conversations between yourself and the harasser(s). Even if the conversations are crude, offensive, or difficult to look at, keep them somewhere safe. Such records can serve as undeniable proof of harassment, which can make the difference in a lawsuit.
- Reporting the harassment to your employer: Filing a formal complaint through your place of employment is a great starting point for both alleviating sexual harassment issues and preparing for a lawsuit. Not all companies have a designated channel to field sexual harassment complaints, however. In such cases, consider contacting the human resource department or a supervisor at your company.
- Filing a complaint with the EEOC or relevant statewide agency: The Equal Employment Opportunity Commission is the federal organization responsible for fielding employment discrimination and sexual harassment complaints. After you open a case with the EEOC, they will perform an investigation into the incident(s). If sexual harassment is found to occur and the EEOC is unable to resolve the issue through conciliation, the EEOC is able to file a lawsuit on behalf of the victim.
Q: Are There Different Types Of Sexual Harassment?
Yes. There are two recognized forms of sexual harassment:
- Hostile work environment sexual harassment
- Quid pro quo sexual harassment
Hostile work environment sexual harassment occurs when there are incidents which create a consistently unhealthy work environment. To prove this type of sexual harassment, courts will consider the frequency and severity of the harassment as well as whether or not the harassment ever become physical or was physically threatening. Moreover, if the sexual harassment impedes work performance or results in psychological harm, hostile work environment sexual harassment may be proven.
Quid pro quo sexual harassment is a bit different. Quid pro quo sexual harassment happens when one person in the workplace offers benefits to another in exchange for sexual favors. Alternatively, quid pro quo harassment includes the threat of demotion, negative performance reviews, unfavorable shifts, or job loss due to a refusal to comply with sexual demands. Due to the nature of this form of sexual harassment, it most commonly occurs between a boss or authority figure and their subordinate.
Q: How Can I Prove A Promotion Was Withheld Due To Sexual Harassment At Work?
Proving that a promotion was withheld due to sexual harassment at work can be particularly difficult. It is illegal for employers to select or disqualify employees for promotion based on any protected categories. If you were eligible for a promotion and believe that your employer withheld the promotion due to sex or sexual harassment, you may have a lawsuit against your employer.
It is important to understand what constitutes unlawful failure to promote. There are legitimate reasons to not promote an employee, including:
- Failure to meet qualifications
- Lack of educational credentials or experience requirements
- Poor performance in current job duties
- Failure to report to work compliant to schedule
- The presence of a more qualified candidate
To prove that the promotion was withheld due to sexual harassment, it is necessary to collect evidence. Ask to see your personnel file and record notes to substantiate if any information was added, removed, or reported inaccurately. Be sure that you maintain a consistent job performance to avoid legitimate claims against you on behalf of your employer.
Seeking legal assistance may be an ideal option. The expert legal team at Ricotta & Marks can guide you on how to prove sexual harassment at work.