How to Prove Harassment in the Workplace

Co-authored by Clinton M. Sandvick, JD, PhD

Last Updated: January 15, 2023 References

Harassment in the workplace must rise to the level of creating a hostile workplace environment for legal action to be successful. Most workplace harassment cases are unsuccessful unless there are shockingly horrific acts committed. This article discusses workplace harassment and how to prove it when it happens.

Part 1

Part 1 of 3:

Understanding Workplace Harassment

1
Know the definition of workplace harassment. Workplace harassment is unwelcome conduct based on a protected condition. Harassment only becomes unlawful if it becomes a condition of employment or advancement or is so severe and pervasive that a reasonable person would consider it intimidating, hostile, or abusive.^{[1]
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Trustworthy Source
US Equal Employment Opportunity Commission
U.S. government agency that enforces civil rights in the workplace
Go to source}
2
Recognize the protected classes of people. For workplace harassment to be unlawful, it must be based on one of the protected classes of people. If you are harassed for any other reason, your only recourse is to quit your job or convince your employer to put a stop to the behavior. Just because you belong to one of the protected classes does not protect you from all harassment, only harassment based on your membership in that protected class. For instance, you have no recourse against an employer who harassed you because of your weight even if you belong to a protected class. Those classes are:
- Race
- Color
- Religion
- Sex or pregnancy status
- National origin
- Advanced age (over 40)
- Disability
- Genetic information
- Any other classes protected by an individual state
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3
Determine any conditions of employment. If the employee being harassed must endure the harassment or risk being fired or not promoted, the harassment is unlawful. Retaliation for attempting to put an end to unlawful workplace harassment is also unlawful. Some examples of retaliation include:
- Firing the reporter upon learning of the report and no being able to support an alternative reason for the firing
- Refusing to promote the reporter upon learning of the report and no being able to support the reason for not granting that promotion
- Demoting the reporter upon learning of the report without being able to justify the demotion
4
Decide if the conduct is severe. Most workplace harassment suits fail because the harassment is not considered severe enough. The conduct must make the work environment intimidating, hostile, or offensive to a reasonable person. A reasonable person is considered to be able to handle petty slights, most isolated incidents. Courts consider a variety of factors when deciding the severity of the conduct. These include:^{[2]
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Trustworthy Source
US Department of Labor
Federal department responsible for promoting the wellbeing of workers
Go to source}
- The frequency of the harassment
- The severity of the conduct
- Whether it was physically threatening or merely offensive statements
- Whether the conduct unreasonably interfered with work performance
- The effect on the employee’s psychological well-being
- Whether the harasser was supervisory or greater over the individual being harassed.
5
Recognize common practices. There are many different forms that harassment can take. It would be virtually impossible to list them all in one article. Common types of workplace harassment include:^{[3]
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Trustworthy Source
US Department of Labor
Federal department responsible for promoting the wellbeing of workers
Go to source}
- Discussing sexual activities
- Unwanted and unnecessary touching
- Sexual assault
- Commenting on physical attributes
- Displaying sexually suggestive or racially insensitive pictures
- Using demeaning or inappropriate terms
- Using crude language
- Sabotaging the victim’s work

Part 2

Part 2 of 3:

Gathering Evidence of Workplace Harassment

1
Read the rules of evidence. The Rules of Evidence for your jurisdiction. Realize that at the administrative level (prior to going to trial), these rules will be somewhat relaxed. You should plan to gather evidence that is generally admissible in a court of law. If the agency provides you with a right-to-sue letter, you will be subject to these rules of evidence. These rules will tell you:^{[4]
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- The types of physical evidence allowed
- Things that must be proven about that evidence in order for it to be admitted
- Different ways to question witnesses in various circumstances
2
Gather physical evidence. Physical evidence can be very persuasive to administrators, judges, and juries. You want to collect and save as much physical evidence as you can. Physical evidence includes:^{[5]
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- Documents showing good reviews before the adverse employment action
- Any demeaning photographs or drawings that were posted or distributed in the workplace
- Any items that were used to demean, humiliate, or injure the victim
3
Identify witnesses. Witness testimony is also a form of evidence. If the finder of fact believes the witness, their statements can be persuasive. Witnesses must have experienced the topics of their testimony first hand. They cannot testify about something they only heard about. Potential witnesses would be able to testify that:^{[6]
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- They witnessed multiple acts of harassment
- They saw items that were intended to demean, humiliate, or injure the victim
- They had conversations with the person who harassed that indicated the harassment was because of the victim’s membership in a protected class

Part 3

Part 3 of 3:

Preparing Your Case

1
Consider hiring an attorney. Employment discrimination law is very detailed and fact specific. It also tends to favor the employer in most jurisdictions. A local attorney should be familiar with the laws in your area and how they are applied in your court system. Even if you choose to not use an attorney for full representation, it may be beneficial to pay for “unbundled services”, which are limited to simply providing for your needs. These services include:
- Preparing documents
- Giving legal advice
- Teaching you the law as it applies to your case
2
Give required notice. In most cases, you must notify your employer that the harassment is occurring and ask that it be stopped. ^{[7]
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- If your company has policies describing where and how to report harassment, you must follow those procedures.
- This requirement is waived if you reasonably fear retaliation if you report within your employer’s organization
- If your immediate supervisor is the harasser, you should attempt to report to the human resources department or higher level management above your supervisor.
3
Complain to the proper agency. Both states and the federal government have laws and agencies that make workplace harassment unlawful. In most cases, state agencies are more favorable to employees; however, you do have the right to report into the federal government if you choose.^{[8]
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Trustworthy Source
US Equal Employment Opportunity Commission
U.S. government agency that enforces civil rights in the workplace
Go to source}
- To report to the federal government, contact the Equal Employment Opportunity Commission (EEOC). You can locate your local field office or call them at 1-800-669-4000.
- To report to your state government, locate your state Fair Employment Practices Agency (FEPA). You locate them by doing an internet search for “FEPA” and “[yourstate]”. Some states require you to have an attorney for certain procedures.
- Regardless of where you report, be prepared to give your name and contact information, the name and contact information of your employer, the number of employees your employer has (if known), a description of the events you believe were harassment, when the events took place, the protected class to which you belong.
4
Work with the agency. If you try to file a lawsuit prior to going through the agency process, it will likely be dismissed. Cooperate with the agency and follow the advice of your attorney. Most likely, the process will include:^{[9]
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Trustworthy Source
US Equal Employment Opportunity Commission
U.S. government agency that enforces civil rights in the workplace
Go to source}
- Your initial report
- Your employer’s response to your statements
- An investigation by the agency
- An attempt to negotiate a settlement between you and your employer
- A decision by the judgment to either prosecute for you or granting you permission to sue on your own.
5
Sue if granted a right-to-sue letter. If the agency grants you a right-to-sue letter, you can file suit in either federal or state court. This will likely be a very complex case, so you should retain an attorney. In some states, you may be required to retain an attorney. Following are some things you should anticipate during your case:^{[10]
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Trustworthy Source
US Equal Employment Opportunity Commission
U.S. government agency that enforces civil rights in the workplace
Go to source}
- Discovery. Discovery is the process through which you gather evidence to use in trial. Discovery techniques will likely include: Asking questions under oath, other orally or in writing; asking for admissions of certain facts; asking for the production of documents and other physical evidence; and potentially requiring physical or mental health examinations
- Mediation or settlement. Many courts require attempts at settlement prior to trial. These attempts are usually confidential meaning that statements made during settlement attempts cannot be used in trial.
- Multiple motions to attempt to end the case without trial. These will include motions to dismiss for various reasons and motions for summary judgment. A motion for summary judgment says that there are no disputes about the facts, and the judge only needs to make a determination based on how the law applies to the facts.
- Trial. If you go to trial, the progression will likely be: The plaintiff’s (your) opening statements, the defendant’s opening statements, the plaintiff’s presentation of witnesses and evidence, the defendant’s presentation of witnesses and evidence, the plaintiff’s closing arguments, the defendant’s closing arguments, and the verdict or ruling by the judge and/or jury.