What Evidence Do I Need for a Sexual Harassment Case Against My Employer or Co-Worker?

Sexual harassment is a form of discrimination that involves unwelcome sexual conduct. According to the section of a federal law known as Title VII of the Civil Rights Act of 1964 (“Title VII”), there are two main types of sexual harassment: “quid pro quo” and “hostile work environment”.

The first type, “quid pro quo” sexual harassment, occurs when a person of higher rank at a company (like a supervisor or executive-level employee) asks a person who is positioned lower than them in the company to perform a sexual favor in exchange for some sort of work benefit, such as a promotion or raise. 

As for the second type, “hostile work environment” sexual harassment, can happen when a worker at any level in the company does something that is hostile or offensive in nature, which pollutes the workplace. 

Regardless of whether it is quid pro quo or hostile work environment sexual harassment, both will require sexual harassment evidence to support a claim. Without evidence of sexual harassment, you will not be able to win your case because there will be no way to prove that an incident occurred. 

What Are the Elements of a Sexual Harassment Claim?

The elements for proving sexual harassment at work will depend on both the type of sexual harassment claim as well as the laws of the state in which the case is being heard. In general, the following elements must be shown:

• The employee belongs to a protected class of persons (e.g., based on their sex or gender);
• The employee was subjected to unwelcome advances, harassment, requests, or other sexual conduct;
• The sexual conduct was severe or pervasive, and would be considered offensive to a reasonable person:
• • Depending on the type of sexual harassment, the conduct must either be so severe that a single incident would constitute sexual harassment or so pervasive that the combined frequency of the actions would constitute sexual harassment;
• Again, depending on the type of sexual harassment:
• • The employee either received job benefits for participating in the sexual act or lost job benefits for refusing to do the sexual favor, or
• • The harassment persisted for such an extended period that it interfered with the employee’s job conditions or work performance; and
• The employee can prove that an incident occurred, a supervisor or colleague was responsible for the conduct, and the employee suffered damages due to their behavior.  

Again, it is important that an employee review the laws in their state to determine the elements that must be proven in their jurisdiction and also must identify the type of sexual harassment that occurred. Thus, it may be in an employee’s best interest to contact a local harassment lawyer for further assistance with their matter.

How Can I Prove a Sexual Harassment Claim Against a Supervisor?

As discussed above, there are two types of sexual harassment claims. Although a sexual harassment claim against a supervisor may involve either type of sexual harassment, it is usually one based on quid pro quo sexual harassment. Again, quid pro sexual harassment occurs when a higher-ranking employee requests a sexual favor from someone in a lower position than them at the company. 

Some common grounds for sexual harassment lawsuits against supervisors under Title VII include the following:

• The employee receives a promotion, a raise, or both because they agreed to perform the sexual favor;
• The employee receives more favorable work assignments and/or overall job duties;
• The employee is able to transfer between departments or office locations without any or few obstacles;
• The employee receives better treatment than other employees in the same position, such as leeway for being late or more vacation days;
• The employee receives a demotion or is terminated from the position because they did not perform the sexual request; and/or
• The employee receives worse job assignments, overall job duties, or less desirable work schedules (e.g., shift workers).

In addition, other employees who were not asked to do the favor may be able to sue a supervisor for quid pro quo sexual harassment. This can happen when a certain employee continues to receive favorable treatment and is able to advance in the company over better qualified workers. In which case, those workers may file a claim for discrimination. 

For example, an experienced female employee is passed up for a promotion because a less qualified female employee agreed to do sexual favors for their supervisor in exchange for the promotion. If the experienced or rejected employee can prove that a sexual favor was one of the conditions to get the promotion, then they can file a claim for employment discrimination.

How Can I Prove a Sexual Harassment Claim Against a Co-Worker or Other Individual?

Sexual harassment claims against a co-worker or other individuals in the workplace will constitute hostile work environment sexual harassment. In general, the employee will need to prove the following:

• They were a member of a protected class of persons;
• They were subjected to unwanted physical or verbal sexual conduct based on their membership to that class; and
• The unwanted physical or verbal sexual conduct affected their position, unreasonably interfered with their job performance, and/or created an offensive or hostile work environment.

A court will also consider how often the conduct occurred, how severe the conduct was, and the timing or context of the conduct. For example, if it was a single incident that happened while discussing sex for a marketing campaign for sexual products (e.g., lubricants) or in a medical environment (e.g., gynecologist office) to discuss treatments for a patient, then it is less likely that the alleged offender meant to perpetuate sexual harassment in the workplace.

Some examples of sexual conduct that may give rise to a claim for hostile work environment sexual harassment include:

•  Asking an employee sexually intrusive questions;
• Making lewd jokes, sexual gestures, or comments;
• Showing, sending, or requesting sexual notes, emails, photos, and so on;
• Making sexual remarks about how an employee looks or dresses;
• Intentionally exposing oneself to another employee; and/or
• Displaying sexual content in the workplace (e.g., nude photos kept on an employee’s desk, sexually graphic images on an employee’s computer screensaver, etc.).

What Evidence Do I Need in a Sexual Harassment Case?

As previously mentioned, a worker cannot win a sexual harassment case without evidence to support their claim. Some common examples of the types of evidence required to prove a sexual harassment case include:

• Correspondence or communications, such as letters, emails, text messages, voice mails, videos, or photographs;
• Copies of complaints, reports, personnel files, and responses between the employee and a manager or human resources representative at the company;
• Testimony from witnesses (e.g., eyewitnesses, other victims);
• Company documents, such as policies against sexual harassment, an employment contract, or an employee handbook; 
• Proof the employee received work benefits (e.g., bump in title, a raise, documents that display the offer of the new title or raise, etc.); and/or
• Personal written accounts (like a journal) of daily sexual harassment incidents. 

How Can I File a Work Sexual Harassment Claim?

In order to prepare and file a claim for sexual harassment in the workplace, an employee should take the following steps:

• Consult company policies and/or an employee handbook to learn more about what to do when a worker experiences sexual harassment at a specific company.
• Gather evidence of sexual harassment (e.g., notes, correspondence, text messages, etc.).
• Speak directly to the alleged harasser and inform them that their behavior is inappropriate or creates an uncomfortable work environment.
• Report the sexual harassment to a supervisor or human resources manager and be sure to keep copies of the report, follow-up response, and the outcome.
• If reporting the incident to someone in the workplace does not resolve the issue, then file a complaint with a local Equal Opportunity Commission (“EEOC”) office. 
• The EEOC will then conduct an investigation to determine how to handle the matter. If the investigation does not solve the issue or produces unfavorable results, contact a local harassment lawyer for further guidance.
• If the lawyer determines that there is a viable claim and the employee has already received a Right to Sue Letter from the EEOC, then the lawyer can file a private civil lawsuit on behalf of the employee. 

It is important to note that a worker will not be permitted to bring a private civil lawsuit against their employer or another employee without a Right to Sue Letter from the EEOC. Thus, they must file a complaint with the EEOC before they can file a sexual harassment lawsuit in court. 

Do I Need to Hire a Lawyer If I Have a Workplace Sexual Harassment Claim?

If you have experienced any type of sexual harassment in the workplace, then it may be in your best interest to hire a local sexual harassment lawyer as soon as possible. The closer in time to an incident that you file a claim for sexual harassment, the better your chances are of bringing a successful lawsuit.

An experienced harassment attorney can provide further guidance on your matter and can assist you with filing a complaint with the EEOC. If after the EEOC investigation the issue is still not resolved, then your attorney can also help you build a strong case to put a stop to any unlawful or inappropriate conduct that you are experiencing at work.