Beyond He Said, She Said: How To Prove Sexual Harassment On The Job

November 28, 2017  |  

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Every day now we are hearing about new sexual harassment accusations against very high-profile men. And while these situations are being played out in the media and have had dire consequences for the men in question, the women who bring about these accusations are in a very precarious situation, leading many to ask, how does one actually prove sexual harassment? And what actions can actually be taken against the perpetrators?

“To prove harassment, a woman must show that she experienced conduct so severe or pervasive that it affected the terms and conditions of her employment and that the conduct was directed at her because of her sex,” explained workplace sexual harassment attorney Jean Boler of Schaefer Halleen.

Since, in many cases, sexual harassment accusations will result in a he said, she said argument, the way to prove harassment, as Boler explained, is to have documentation. “A woman should document the harassment with notes, make reports that detail the harassing conduct, tell others what is happening so that they can support her claim. Save all texts and emails from the harasser,” she advised. “Also, talking to other women may reveal a pattern of this type of behavior.”

One way to document such incidents is by keeping a journal, said Dr. Nancy B. Irwin, a Los Angeles-based doctor of psychology and expert in sexual abuse recovery and prevention who is a former sexual harassment victim herself. “Keep a journal logging in every comment, gesture, event with the date and time,” she advised.

Jennifer Hancock of Humanist Learning Systems who teaches how to use behavioral science to stop unwanted behavior like harassment and retaliation agreed, suggesting you journal the “Date, time, location, any witnesses, any proof and a very specific description of what happened exactly.” She said documentation is not about pointing out how you feel, but noting “on this date at this time in this location he said this and put his hand on my shoulder.” She added, “Harassment is a pattern of behavior, so what you are trying to prove is a pattern of behavior. Don’t omit anything. Small snide remarks go into the pattern. They aren’t worth mentioning on their own, but in the context of a pattern of behavior they become important.”

You should also seek out any video or audience evidence that might be available, Irwin added. “Any security videos or audio recordings of offenses are excellent. Of course, if there are any witnesses, have them included and sign. Share the experiences with a trusted individual, either a co-worker or a friend or a therapist. All of this backs up your credibility when you are ready to discuss this with a supervisor or HR or ombudsperson.  This helped me when I filed such a claim some 20 years ago in NYC.”

While Irwin may have reported her sexual harassment, so many women, up until now, have stayed quiet about the harassment they’ve endured. Even high-ranking female executives are hesitant to file sexual harassment complaints. “Women still feel they will be the ones penalized if they make a complaint,” Boler pointed out. “They often think they will lose their jobs or their careers will suffer if they complain. Sometimes they have seen that happen to other women and the higher up you are, the harder it may be to complain.”

Irwin agreed. “It is usually much harder for a female to reach a high executive position,” she said. “The last thing she wants to do is risk all her years of climbing that ladder and be accused of  ‘being a girl’ which such a complaint. Many female executives have suffered a great deal of harassment on their way up, and to report it now, they feel, would be opening an enormous ‘can of worms.’”

If you feel safe enough, you can tell your harasser you want him to stop and that this type of behavior is not wanted or acceptable before you escalate the situation. If that course of action fails to make a difference, once you have evidence in hand, you will need to get it to a person who can take action. “Are there any allies you can recruit higher up than the person harassing you?” Hancock asked. If so, you should “Get them lined up” and “Report according to the proper channels.”

It’s important to realize, however, that this won’t stop the harassment, Hancock said. “You do this to set up the conditions to seek monetary damages if the employer fails to protect you.  You give them the opportunity to protect you; use the system they set up. Only after that fails, can you sue.”

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