The Importance of Documenting Incidents of Sexual Harassment in the Workplace

One of the most challenging aspects of sexual harassment on the job is that it’s insidious, which means that it tends to stay below the radar – even as its negative effects take on epic proportions. In other words, sexual harassment causes considerable harm, but it can be very difficult to prove without the necessary documentation. Without evidence, sexual harassment claims often come down to instances of one person’s word against the other’s.

Whether you are the person who is being sexually harassed or you’ve witnessed someone being sexually harassed, you should take the matter of documentation seriously. Even if you’re not the victim of sexual harassment, calling it out is the right thing to do, and you may be instrumental in helping your colleague and in mitigating the toxicity in your office.

If you’re the person being harassed, documentation will likely play an important role in the outcome of your claim. Even memorializing the date and time of the incident, along with a few words that sum the matter up, can help. The more specific you are, however, the harder it will be for your employer to discredit your account.

A great way to prove that you’re being sexually harassed is by documenting the person harassing you in action. While sexual harassment can take many forms, a common manifestation of sexual harassment is making harassing statements. While our smartphones make it exceptionally easy to record others whenever we like – without them having any idea that they’re being recorded – doing so is illegal in California.

California is one of a handful of states that employs what is known as two-party consent. In most states and at the federal level, it’s legal to record a conversation as long as at least one of the participants consents. In California, however, all involved parties must consent to be recorded, which means there’s little chance that this form of evidence will be available to you. Fortunately, there are many other forms from which to choose.

Simply taking notes that you date every time your harasser bothers you is a great place to start when it comes to documentation – it’s also a great way to keep a running inventory of all the documentation you’ve gathered.

Sexual harassment and evidence of sexual harassment can come in all the following ugly forms:

• Phone messages
• Written notes
• Offensive photos, cartoons, or clippings that are dropped on your desk or left in your mail slot
• Offensive posters or pictures that are hung in the office
• Off-color or otherwise offensive jokes told within your earshot and other forms of verbal harassment
• Electronic messages, including texts, emails, DMs, and messages that are sent through your office’s messaging system
• Posts and photos on social media
• Provocative glances
• Physical harassment, such as blocking your movement or even sexually assaulting you
• Unwanted sexual advances

If it makes you feel uncomfortable, it may be sexual harassment, and it’s time to discuss the matter with a seasoned sexual harassment attorney.

If the sexual harassment you experience comes in the form of comments or physical actions that provide no evidence, write them down. While doing so, keep all the following in mind:

• The date the incident happened
• The time the incident happened
• Where the incident happened
• The names of anyone who may have witnessed or heard the incident
• All the specific details regarding the incident that you can remember – no detail is too minor to include

Any manner in which you record this information is fine. Writing it out by hand in a notebook, entering it into your phone or personal computer, printing it out as a document as you go, or doing whatever works for you is the best approach. It’s important to recognize, however, that anything you enter on your work computer may be considered the property of your employer, which can be a serious impediment to your sexual harassment case.

For other forms of sexual harassment, it’s important to do all the physical documenting you can. For example:

• Save all phone messages.
• Print out all emails and text messages.
• Take pictures of all evidence around the office.
• Save everything that your harasser sends you or leaves on your desk.
• Take screenshots of all electronic evidence, including social media posts and pictures.

Regardless of the kind of evidence in question, always make a copy. While you may not need it, it’s there if you do.

When you go about collecting evidence in support of your sexual harassment claim, it’s important to capture as many details as possible. Adopt the journalist’s approach by answering who, what, when, where, how, and why questions in relation to every piece of evidence.

For example, instead of writing that X made an offensive comment on May 11 around noon, try going into greater detail. For example: On May 11, X told the following offensive joke – insert the joke to the best of your recollection here – to A, B, and C directly outside my open office door just as people were preparing to leave for lunch. It happened at about noon, and all the following employees were nearby and likely heard him. By capturing all the details you can, you make your overall body of evidence much more difficult to refute.

Just as important as the evidence you gather at work is the testimony shared by those you talked to about your problem. Being sexually harassed on the job can be harrowing. It’s not unusual to share one’s concerns with others, such as:

• Your spouse, domestic partner, or roommate
• A close friend or family member
• A trusted confidante Someone from your place of worship
• A colleague

The heavy burden of living with sexual harassment can weigh you down, which encourages many victims to share the load. Each of the people whom you discussed your ordeal with can play an important role in your sexual harassment case. Not only can they corroborate your account of the situation, but they can also attest to the negative effects it’s had on your life.

If you’re being sexually harassed at work, it’s very likely that a wave of denials accompanied the harassment. This brand of gaslighting can lead to crippling self-doubt and increased emotional pain. By documenting your harasser’s every move, you maintain a concrete record of everything you’ve endured, which not only bolsters your claim but can also bolster your strength.

Your body of evidence reinforces that inner voice that says you know exactly what happened to you and can serve as the ballast you need when you feel your resolve teetering.

One graduate student’s journey through harassment at the hand of her professor – who had considerable power over her career, much like an employer does – involved her keeping copies of each email between her prof and herself and between herself and those she poured her heart out to. Ultimately, she created a solid timeline of events that told a compelling story of harassment and its damaging effects. She wove quotes from these emails throughout her harassment claim – to powerful effect.

Too many victims of harassment, discrimination, and retaliation on the job are afraid to file claims because they believe their imperfect recording of events amounts to a botched job. The most important point to make here is that sexual harassment often begins as something that seems innocent enough and then slowly but steadily builds, making it difficult for anyone to say exactly when the harassment began.

You are not expected to record every incident you ever had with your harasser precisely – nor are you expected to know the moment they first unambiguously crossed the line. You are an employee who has been harassed at work, and it’s a lot. In fact, you might be dealing with an endless loop of competing thoughts like the following:

• The person harassing you doesn’t realize that’s what they’re doing.
• The person harassing you means no harm.
• If you ignore the harassment, it will go away.
• The problem is that you’re too sensitive.
• Nobody else seems to mind. You should focus on your work and forget the rest.
• Calling attention to the matter can affect your career.
• You can lose your job.
• Is it really harassment?

If your harasser makes you feel uncomfortable at work to the degree that you’re even considering filing a claim, you should trust your instincts and begin documenting now. You should also go back and write down every relevant incident you remember happening thus far – using context clues to approximate dates and times.

Another great resource when it comes to filling in the blanks is circling back with the people you turned to when you were down. You may be surprised by the level of detail they remember, and they’re almost certain to revitalize some memories of your own.