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Proving Sexual Harassment in the
Workplace

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As allegations of sexual harassment in the workplace continue to make the news, the question of how victims should respond remains unanswered. Even when no celebrities are involved, it can be difficult to convince those around you that a boss or co-worker is acting inappropriately.

A study conducted by Harvard Business Review found that although women’s reports of sexual harassment have decreased following the #MeToo movement, reports of gender harassment have gone up. This means that we still have a way to go, and that harassers may be acting in more subtle ways. According to a 2018 study by Pew Research Center, 69% of women who reported experiencing sexual harassment said it happened in a work setting.

As a brief refresher, the two main types of workplace sexual harassment are quid pro quo and a hostile working environment. Quid quo pro sexual harassment refers to offering something in exchange for the sexual act, such as a promotion or raise. A hostile work environment is fairly self-explanatory, but essentially means creating an uncomfortable environment due to inappropriate comments, behavior, or physical touch. All workplace sexual harassment is federally illegal under Title VII of the Civil Rights Act.

Barriers to Justice

Gathering admissible evidence is crucial to workplace sexual harassment cases. This is because most companies have a policy requiring proof “beyond a reasonable doubt.” The standard that courts use is a lower one – “preponderance of evidence” – but private companies can set their own rules. Unfortunately, this means that without a confession or witness statement, it is incredibly hard to prove harassment.

The other policy creating a barrier is confidentiality. Even if the accused is found guilty, (and if they are, they are rarely punished), no one at the company will find out. That makes it difficult for potential victims to avoid the perpetrator around the workplace.

Burden of Proof

When sexual harassment in the workplace does occur, it unfortunately falls on the victim to prove. They will need to show four things: 1) they belong to a protected class (in this case gender), 2) they have been subject to harassment/unwanted sexual advances, 3) the harassment was based on sex/gender, and 4) the harassment was severe enough to create a discriminatory or abusive workplace. The fourth point is often the hardest to prove.

Victims of harassment will need to gather any evidence they can, which can be difficult. One way to establish a pattern of harassment is to simply document it privately. While the ideal evidence would be an email, text, video, or audio recording, that’s difficult to obtain.

If you are experiencing harassment at work, no matter how minor, you should begin documenting it. Every single time an instance occurs, write it down. Create a document or use your phone’s notes app to start a list. Write down as much information as possible, such as: the date, time, who was involved, what was said/done, were there any witnesses. If there were witnesses, that will help your case.

Retaliation

Retaliation is a very important issue in the world of workplace harassment. It is defined as any action that may deter someone from participating in an activity protected by antidiscrimination laws. A 2020 study conducted by the U.S. Equal Employment Opportunity Commission (EEOC) found that 55.8% complaints that year related to retaliation after reporting workplace sexual harassment.

A famous example in the news would be the Harvey Weinstein case. Because Mr. Weinstein had authority over the careers of the women he harassed, he was able to allegedly threaten retaliation if they spoke up. Unfortunately, just like sexual harassment, retaliation is very difficult to prove without hard evidence. If you experience harassment or retaliation in the workplace, remember to take detailed notes and establish a pattern of behavior – then report it.

This blog was printed with permission.

About the Author: Sharon Feldman is a writer based in San Diego, California, who is passionate about safety and equality. When not writing blogs, Sharon can be found at the beach with her dog.


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