Building a Case of Sexual Harassment

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I have been representing victims of sexual harassment for many years.   All too often, potential clients call me AFTER they have either quit or been fired, due to the harassment or for complaining about the harassment.   At this point, it is often a “he said, she said” type of case with little evidence to support the victim’s claims other than the victim’s own testimony.

Witnesses of Sexual Harassment

I am frequently assured by the client that she has witnesses that will support her claims.  However, if those witnesses are still employed by the harasser or the company where the harassment took place, it is very rare indeed that they will actually testify against their employer.   They either say they didn’t see anything, or frequently  they will testify in support of their employer, blaming the victim for what happened and supporting all of the denials that there was a problem.  This creates a situation where the victim is on her own with nothing other than her own testimony to oppose the employer and employees all of whom will testify against her.    This creates a very risky case.  Many lawyers would be reluctant to risk their time on nothing more than the hope that the victim will believed over the testimony of many others still employed. 

Talk to a Lawyer BEFORE Action is Taken

I greatly prefer getting a call for help while the victim is still in the workplace and being harassed.   I advise our clients to collect evidence in the workplace that will support the elements of a good claim.   If the harasser has sent her text messages and e-mails with sexual content, those need to be preserved and copies should be saved at home where they will be safe.   Text messages can be e-mailed to the victim’s personal e-mail address at home.   Additionally, a victim can take a photograph of the text messages.   The victim should be careful to respond to such written sexual overtures with responses that clearly try to discourage the harasser, or do not reply at all. 

Attempt to Record the Harassment

In Ohio and in several other states, it is not unlawful to tape record another person without their consent or knowledge.  In some states such as Florida, it is unlawful, so you should never do it without checking with an attorney first.   It is unlawful to tape record a telephone conversation across state lines, so you should never tape record a phone call if you are in Ohio and the other person in the conversation is in Kentucky, for example.  

I suggest to clients that they get a small hand held digital recorder in order to tape record conversations in the workplace that will help the victim prove the fact that she is, in fact, being sexually harassment.  The victim should be careful to not do too much of the talking as it is not helpful to have a recording which is largely the victim going off on the harasser, who cannot get a word in edgewise.   The victim should practice using the recorder at home so that she can be sure that she will, in fact, capture the conversation that she is going to tape.

Confront the Harasser

I suggest that the victim confront the harasser with the tape recorder hidden and make some references to some of the sexual  statements that the harasser has made, letting him know that the victim is offended by the behavior.   In a sense, the victim is trying to get the harasser to reaffirm the statements or discuss what he wants from her.   It is important to do this without sounding like the victim is inviting the sexual harassment.  Instead, you want to make sure that you are making it known that the harassment is offensive to the victim.

Notify HR or Other Personnel Through the Proper Channels

It is important that the victim complain about the sexual harassment to the proper person in the company.   All too often, a victim will complain, only to have the person she complains to later deny having any knowledge of the problem.   In some cases, it is absolutely crucial to be able to prove that the victim notified the Employer of the problem in order to have a case.  This is why Melinda suggests that the victim complain by e-mail or in writing, or that she tape record her complaint to prove that she has tried to notify a person in the company in a position to stop the harassment.   

The victim should look for a sexual harassment policy to see how the Employer suggests that she notify the proper party of the problem.   Look in the Company Handbook or ask the Human Resource Department for the sexual harassment policy, letting them know that you want to make a complaint. 

The very best cases have clear and undisputable evidence of the sexual harassment and the complaint about the harassment.  If you are being sexually harassed, call me at (513) 232-LAWS (5297) immediately to discuss how to build your case.

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