As a lawyer, one of the easier cases to argue is one where there is indisputable evidence your client was wronged. This is the smoking gun situation, where the defendant is clearly at fault. In the world of sexual harassment, these smoking gun cases are rare. What is more common is a war of words—different versions of events told by the two sides to a sexual harassment case. As the victim of sexual harassment, this can be intimidating, especially if it is your word against your supervisor’s. Can your word hold up against your supervisor’s or your employer’s? Will your version of events be enough to win a sexual harassment case?

In this post, we’ll talk about the elements of sexual harassment, what types of evidence are used in a sexual harassment case, how conflicting testimony is resolved, and what you can do as a victim of sexual harassment to help support your own case. If you believe you’ve been sexually harassed at work and would like to understand more about your case, please contact Eisenberg & Baum. We have an experienced group of New York sexual harassment attorneys who are ready to help and advocate on your behalf.

What Are the Elements of Sexual Harassment?

As we’ve discussed in prior blog posts, there are generally two types of sexual harassment cases: quid pro quo cases and hostile work environment cases. Quid pro quo sexual harassment cases occur when an employee is offered some employment benefit in return for the employee’s participation in some unwanted sexual conduct.

Hostile work environment claims, on the other hand, don’t involve this kind of “exchange” of sexual conduct for benefits but rather depend on the employee showing that they were subjected to unwanted sexual conduct that was severe enough to create an intimidating, hostile or offensive work environment. Unlike quid pro quo claims, hostile work environment claims typically require the employee show a pattern of harassment over time that ultimately interfered with the employee’s job.

What Types of Evidence Are Used in Sexual Harassment Cases?

Whether you have a quid pro quo claim or a hostile work environment claim, there are two general categories of evidence that you can use to support your case and counter the version of events provided by your supervisor or employer.

Direct Evidence of Sexual Harassment

Direct evidence is the most straightforward way of proving a sexual harassment claim. Direct evidence is evidence that goes to directly proving an element of your claim. For example, a statement by your supervisor that he will fire you if you do not consent to a sexual act would be direct evidence of quid pro quo harassment. Likewise, emails containing sexually explicit jokes sent to you by your supervisor could be direct evidence of a hostile work environment. Even if the statements supporting your claim were made verbally, they can be used to support your claim.

Circumstantial Evidence of Sexual Harassment

Sometimes, the harassment is not as blatant as the examples given above. Instead, an element of the harassment must be inferred by the circumstances surrounding the employee and the harasser. This type of evidence is known as circumstantial evidence, and while it can be more difficult to prove a sexual harassment claim or element based on circumstantial evidence, it can still be effective. Take the above example of the supervisor propositioning their employee, but instead assume the supervisor did not make an explicit threat to fire the employee if they did not consent. Nevertheless, the employee refused to participate in the sexual act and a day later, they were fired. The proximity of the firing to the supervisor’s proposition could be circumstantial evidence of a link between the proposition and the decision to fire the employee. Another example of circumstantial evidence that could help support the employee’s claim is evidence that other employees were treated similarly in the past by the same supervisor. The more circumstantial evidence there is to support the link between the proposition and the firing, the stronger the employee’s case will become.

How Will Different Versions of Events Be Resolved?

So what happens when your version of events conflicts with your harasser’s version? First, you should know that, just because your supervisor tells a different story, that does not mean your testimony won’t be considered by a court. Your testimony, as the alleged victim of sexual harassment, is often a crucial part of your case. The purpose of the courts and administrative bodies like the Equal Employment Opportunity Commission in handling disputes is often to decide between differing versions of events. The more support you can give for your version through other evidence, the more likely you will prevail in the dispute.

What Can I Do To Support My Case?

Support for your case can come through a number of different sources, from statements by witnesses and other victims to emails and other documentation of the harassment. That kind of evidence is not always available, so it is helpful if you find yourself being sexually harassed, to document your experience as you go through it. We suggest keeping detailed, dated notes of conversations and interactions you’ve had with your harasser and management. Your employer will often have a reporting procedure for sexual harassment victims, which we also recommend you follow. This will provide another avenue for documenting your complaint. If there is a dispute between you and your harasser or employer about what actually happened, your documentation can be critical in supporting your case.

Finally, if you believe you have a sexual harassment claim, please contact us. We can discuss the merits of your case and advise you on your next steps. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.