Is Harassment Hard to Prove?

California statutes and case law lay out with relative clarity what it takes to prove sexual harassment. Because the law is clear, we are able to prove sexual harassment if the facts in a case support it. It takes more than “he-said-she-said,” though, and that’s why it’s important to consult an attorney when gathering evidence to prove your claim.

All unwelcome sexual aggressions are against the law, not just violent ones. Unwanted touching, off-color jokes, sexual innuendo in conversation, physically blocking your movement, inappropriate withholding of promotions or career opportunities unless you provide sexual favors, and a wide variety of other harmful and diminishing acts fall under the category of sexual harassment. Sexual harassment can be severe, such as one violent act, or it can be pervasive, such as a series of comments or behaviors over time that make a workplace toxic.

It takes more than an occasional glance or annoying comment to prove harassment. And it is very hard to prove harassment if an employee willingly participates in the challenged behavior, such as looking at lewd photos or telling sexually provocative jokes.

If you believe you are experiencing sexual harassment, begin taking meticulous written notes about when, where and how the encounters take place. If you have video or photos of the actions in question, keep those, too. Capture as many details as possible because this could help an attorney prove your case.

The legal team at Gilleon Law Firm has helped countless clients bring a sexual harassment lawsuit against employers and other organizations, and we may be able to help you, too. We’ll answer your questions, assess your claim, and explain your legal options. Call us at 800-408-2857.

Why is sexual harassment hard to prove?

Under the California Fair Employment and Housing Act, sexual harassment takes two forms:

  • Quid Pro Quo (“something for something”), and
  • Hostile Work Environment

Quid pro quo harassment can only be committed by a manager, supervisor or other work colleague who has the power to enact an adverse employment action, such as giving you a bad performance evaluation, demotion or firing.  The quid pro quo can be actual or implied.  A co-worker who does not have supervisory power over you cannot commit quid pro quo, but their unwanted sexual advances and harassment can create a “hostile work environment.”

Following are some elements that are important in proving sexual harassment claims, whether quid pro quo or hostile work environment:

Unwelcome Conduct

You must be able to prove that the challenged conduct was unwelcome. This is called the “subjective standard.” There can be no evidence of consent, unless it was coerced. If there’s any evidence that you willingly agreed to or participated in an action or behavior that you later claim was offensive, it will be hard to prove harassment.

“Reasonable Person” Standard

In addition to being unwelcome and offensive to the plaintiff, you must also prove that the alleged harassment would be offensive to a “reasonable person” – a man or woman in a similar position. This is called the objective standard. The entire context of the encounter is critical in proving this standard.

Based on Her or His Sex

Harassment must be related to your gender or sex. For example, bullying or harassment based on your education, socio-economic background or religious affiliation does not fall under sexual harassment (though it may be actionable in a separate claim).

Sufficiently Severe or Pervasive

A single offensive comment may not be enough to prove hostile work environment. The challenged action must be sufficiently severe (such as an assault) or pervasive and/or systemic, such as a series of ongoing comments or actions that make it very difficult to perform your work.

You can successfully prove a hostile workplace complaint if you have the evidence necessary. If you cannot produce evidence of the harassment – including documented complaints to HR, witnesses, photos or video, medical records, DNA, corporate systemic hostility or other physical evidence – it may be hard to prove harassment. Sexual harassment can also be hard to prove because it often happens in quiet, hidden or empty locations where there are no witnesses. And when the challenged offense is implied, rather than actual, a defendant can argue that you misunderstood their meaning.

What constitutes sexual harassment?

Here are some behaviors that can constitute harassment:

  • Forcing physical encounters like touching, standing too close, assault or confining a person’s movement
  • Verbal abuse that includes whispers or cutting remarks about a person’s body, sexual orientation or manner of dress
  • Revealing private body parts inappropriately to intimidate or solicit
  • Retaliation or threat of retaliation if sexual advances are refused
  • Bullying an employee based on their gender
  • Showing materials that are sexual in nature including photos, videos, audio feeds, etc.
  • Promising promotions, opportunities or employment benefits in exchange for sexual favors
  • Overt or ongoing suggestions to engage in sexual activities
  • Making jokes, comments, or derogatory remarks that are sexual in nature
  • Other actions that include sexual innuendo or intent.

How hard is it to prove harassment in the workplace?

Whether or not it is hard to prove harassment in the workplace is very fact dependent. The more facts and evidence, the better. It can be hard to prove harassment if all you have is a generalized feeling of anxiety or discomfort in the workplace, or if a defendant can easily explain away the action or series of comments that you are challenging.

Contact a Skilled Sexual Harassment Lawyer Today

If you believe you have been subjected to sexual harassment, an experienced attorney can quickly assess your claim and tell you whether he or she believes your claim can be proven. Claims can be hard to prove, but with the proper evidence, a case can be successful. At Gilleon Law Firm, we would be glad to answer your questions, assess your claim, and explain your legal options. You can reach us at 800-408-2857.