What is Legal Harassment
Harassment is defined by federal law as unlawful discrimination against another person or persons "because of" their race, color, religion, sex, disability, or national origin. Harassment constitutes a form of employment discrimination that is considered a form of employment discrimination, which is a violation of Title VII of the Civil Rights Act of 1964 (Title VII) and Title I of the Americans with Disabilities Act of 1990 (ADA).
For example, a manager who uses racial slurs to refer to an employee or repeatedly makes offensive comments with sexual overtones toward a harassed employee violates Title VII’s bar of discrimination.
Harassment does not have to include intent to harm, perform illegal acts, or be directed at a target. In other words, harassment can occur even if the harasser has no intention to harass the target or affects an individual unrelated to the harassed employee. Unlawful discrimination can include:
For example, a job applicant didn’t get hired because of his/her religion or other protected status, but none of the decision makers involved in the hiring process expressed the reason for the decision.
When creating and disseminating information to the public, a utility company has a duty to ensure it does not create consenting to treatment that adversely affects its customers based on their protected status.
Unlawful harassment violates Title VII, the ADA, and the Americans with Disabilities Amendments Act of 2008 (ADAAA) . It includes unsolicited verbal or physical behavior of a threatening, intimidating, or hostile nature or the humiliation, embarrassment, or discomfort that occurs in the work environment.
There are two categories of harassment claims: quid pro quo harassment and hostile work environment.
Quid pro quo harassment occurs when:
In such cases, the harassment is directly tied to the harasser having or not having access to some benefit or privilege from the employer. Quid pro quo sexual harassment occurs when trade of sexual favors occurs for workplace benefits such as a promotion or being hired.
Alternatively, hostile work environment harassment occurs when:
Essentially, hostile work environment harassment turns the aggressor’s workplace conduct into illegal environmental conditions.
For example, an employee could state that he/she is being harassed by his/her boss. Even if the boss never touches the employee, he/she could still be found guilty of hostile work environment harassment if the following occurred:
In order to prove evidence for harassment, we will have to establish that:
Once we have enough evidence to establish reasonable suspicion, our harassment lawyers will then take depositions under oath from you and various other witnesses to build the claim.
Finally, it is written that the harasser’s actions maliced were motivated by racial, sexual, ethnic or other discriminatory reasons.
Collecting Evidence Successfully
Investigating a potential case of harassment is an ordeal, as you obtain evidence from employees through cooperation. But it is also a time-consuming process for management to take the time out to conduct thorough interviews while continuing with other business duties. As stated by the California Department of Fair Employment and Housing (DFEH), when investigating harassment charges, employers bear the burden of taking reasonable steps to prevent and correct acts of harassment in the workplace. However, your investigation depends heavily on making employees cooperate with the investigation.
What Is Evidence? Evidence consists of facts, or information that can prove something is true or untrue. For example, if John was harassing Anna with emails and texts, you need to prove the what, where, when and how Anna was harassed, as well as the things that indirectly support her claim. Direct evidence would consist of the emails, texts or other correspondence between John and Anna. Indirect evidence might include statements from other employees who know the accused both before and after he was caught harassing others. It might also include statements from other employees who know Anna who can confirm her version of the story. You might also find indirect evidence such as changes in the accused’s online communication habits before and after he was accused, or discrepancies in the accused employee’s accounts of his activities at work before and after the complaints against him were made. You should always include information about the complainant’s situation before the harassment began, and after it ended, including any changes in the complainant’s behavior or general demeanor.
Gathering Evidence To effectively gather evidence for your investigation, you must do the following: • Conduct interviews and record the information collected. • Obtain copies of relevant documentation. • Review evidence and summarize findings. • Prepare interview notes and summaries. • Issue your final report of findings.
Record interviews with the complainant, and have her sign off on everything you recorded. Include her reasons for deciding to make a complaint. Record the complaint verbatim, if possible. Interview all employees who had a witness to the alleged harassment, and note their replies verbatim as well.
Writing It All Down After gathering evidence for your harassment claim investigation, you may need to write an official report detailing everything you discovered. This simplifies the work of anyone who might take further action regarding the matter. It also gives you a full picture of what happened, which is what you need to remedy employment situations successfully. In your report, include all the steps you took during your investigation, such as interviews, inventory of photos or other evidence, research and evaluation, and any other useful information. Also include the written summary of findings at the end of your report.
The Importance of Witness Statements
The determination of whether the conduct alleged constitutes harassment is a fact based inquiry. Because of this, much of the evidence presented in an anti-harassment case will be evidence of the prior interactions between the parties and others before and after the alleged harassment took place. This may include phone records, correspondence, and even evidence of prior similar complaints.
Witness testimony in anti-harassment cases is often important. Witness testimony may be necessary even where the complaining party recorded the incidents giving rise to the claim. Because such testimony is important, non-party witnesses may be the focus of questions at a deposition or in written discovery. Any type of relevant, material information may be subject to disclosure, even information that is embarrassing or difficult to disclose. The fact that the information may not be flattering does not render it confidential or privileged. Witness testimony may additionally be required in order to prove harassment where the acts alleged are not witnessed by others. For example, a witness may be required to testify to the behavior of the alleged harasser or may provide evidence of communications relative to the harassing conduct.
Documenting cases of Harassment
When an employee first experiences a subtle form of harassment, the incident may be overlooked as a miscommunication. However, if it becomes clear that the harassment is persistent or escalating, it can be difficult to prove. This process is made much easier through comprehensive documentation of the harassment in question.
It is important to record the date, times and nature of each incident in detail, noting any witnesses and the names of the relevant supervisors so that a full picture of the experience is available in court proceedings. It may be even more helpful to map the connection between separate incidents. For example, an employee may experience several forms of harassment connected with the same situation—perhaps a manager harasses them for months regarding a minor mistake on a report. By documenting this pattern, the employee can form a picture of the overall bullying behavior and craft a compelling narrative in their case.
Additionally, if an employee is able to connect enough examples together to prove a pattern, they can use that to argue that the actions in question are part of the same larger issue. This could then be used to prove that a single non-sexual comment was unwelcoming or intimidating (or more) in nature, as opposed to a harmless misunderstanding.
Supporting Your Case with Legal Counsel and Resources
Engaging legal counsel experienced in handling harassment cases is advisable. Since an experienced attorney or law firm can be invaluable in ensuring that you present the most compelling case possible, they can be very helpful in corroborating your harassment claim.
Legal support and resources for sexual harassment claims can include those listed below.
The U.S. Equal Employment Opportunity Commission (EEOC) An EEOC investigation of a sexual harassment claim will require receipt of such paperwork as an intake questionnaire and an interview by the EEOC. The EEOC will then make a determination about next steps. If the EEOC decides that your harassment claim is meritorious , they may issue a "right to sue" letter so that you can bring a claim in federal court. If their investigation discovers some other issue — such as a retalitory action that your employer undertook against you after you filed your complaint — they may pursue that finding, and you will be seen as a witness.
The courts A civil court can adjudicate a sexual harassment dispute, whether it pertains to employment or otherwise. If your employer retaliated against you for filing a harassment complaint during the course of the EEOC investigation, for instance, you can bring a lawsuit against them. Even if the EEOC found on your behalf, you will need a private lawyer to help you secure remedies for your civil and punitive damages. Through your court case, you can hold either your employer or the harasser responsible for their actions.
Making Your Case in Court
After the discovery process, depositions, and other procedures have been completed, it is time to take the next step: bringing your claim to court and proceeding with the case. Presenting your case effectively requires a lot of preparation, including ensuring that you present everything in the right order and make the right points throughout.
The sequence of presenting your information and evidence is as follows:
The plaintiff goes first
This means you go first if you are suing. You provide the witness lists that you plan to call as well as any other witnesses that you may call during your case.
There are no motions
You file a motion to dismiss and a motion for summary judgment at this stage of the process. However, no pre-trial motions to dismiss or for summary judgments can be filed without permission of the court.
Plaintiff’s Evidence
This consists of expert witness testimony, eyewitness testimony, and physical evidence (emotional distress documents, lost income, photos, and other visual representations) that prove the facts of the situation.
Cross-examination
During cross examination, the defendant’s lawyer has the opportunity to ask questions to the witnesses you call in order to undermine your case. They do this by challenging your evidence and witnesses, showing why they are not credible and therefore should not be believed by the court.
Defendant’s Evidence
This includes expert witness testimony, eyewitness testimony, and physical evidence provided to the court to disprove the plaintiff’s claims and show that the harassment did not take place. The purpose is to show that the harassment either did not happen or that it was not of the severity or manner that you state it was. They try to show that your evidence is not credible and should not be believed by the judge.
More Cross-examination
This is when you have the chance to cross examine the defendant’s witnesses to show that their credibility is questionable and that their case should not be believed by the judge because of issues in their testimony.
Closing statements
Both parties get the right to end their case with a closing statement summarizing and making key points about their case before both sides rest.
Allow for the Judge to ask questions
Cross examination should be halted during the Judge’s questioning because it is the Judge’s prerogative to ask questions during the trial to clarify anything appropriate, particularly at the end of cross examination.
Potential Challenges with Harassment Cases
Much like any other personal injury case, harassment cases come with their own particular challenges such as:
Lack of Evidence
In the case of a single incident sexual harassment, you may not have evidence of the moments leading up to the incident. You might not have video footage of the harassment taking place. As a result, you will need credible witnesses to defend your harassment claim by testifying on your behalf. You will also need the evidence of the claims that you have which could include copies of emails, texts, and voicemails.
If the harassment that you are experiencing is in the workplace, then you might have colleagues who also witnessed the harassment taking place or have knowledge of the offensive comments. It is essential to contact an attorney who knows how to handle people in high places in a harassment suit. You should definitely let your attorney know who your boss is and what sort of power they hold at the company .
Ineffective Reporting
Often, harassment victims are met with retaliation, contempt, and disbelief when they report their harassment to an employer. Sometimes, reporting harassment to HR or management in your place of work is not enough. Firms may attempt to sweep this type of behavior under the rug because it is costly for them to lose employees to sexual harassment or discrimination claims, which will substantially affect their bottom line.
Sometimes, the defense of the harassment case is intimidation and power tactics. Someone may be sent to bully the victim, go after their credibility, or make them feel guilty about pressing charges or filing a suit. As scary as this may be, don’t back down. If your employer is treating you this way, then it is an even further indication that you should be seeking justice for the way that you have been treated as this is a toxic work environment.