Proving sexual harassment in the workplace can be exceptionally difficult. When confronted, virtually all harassers claim that harassment never occurred or that their words or actions were taken out of context. Few, if any, people readily admit that they have engaged in harassing behavior.
This often leads fact-finders, like the EEOC and courts to make judgment calls about the credibility of victims and offenders. In a 2018 Time magazine article, former sex-crimes prosecutor, Allison Leotta, discusses the origins of this “he said, she said” problem in sexual harassment and assault cases, noting:
“[T]he legend of ‘he said, she said’ originated centuries ago. Under old English law, rape prosecutions could not be brought unless every material element of the victim’s story was corroborated by another witness or evidence. Because sexual assaults don’t usually happen in crowded pubs, this rule effectively barred many cases. Victims of any other type of crime…could provide the sole testimony at trial…[but] rape victims were uniquely excluded from the criminal justice system. This exception was steeped in misogyny. Women had lower status in that society, and rape claims were one of the few instances where a woman’s word might legally diminish a man’s authority.”
While most jurisdictions have repealed their “corroboration” requirement, systemic skepticism of female testimony still remains. This skepticism could hardly be more evident than in the realm of workplace sexual harassment.
If have been experiencing issues at work, such as discrimination, harassment, or wrongful termination, contact us for a free consultation with our legal team.
Sexual Harassment: Is it Always His Word vs. Hers?
Title VII of the Civil Rights Act of 1964 prohibits sexual harassment and discrimination. Workplaces with 15 or more employees, as well as government offices, must comply with Title VII. According to the U.S. Equal Employment Opportunity Commission, sexual harassment may include:
- Unwelcome sexual advances;
- Requests for sexual favors; and
- Verbal or physical conduct of a sexual nature
While many sexual harassment cases hinge upon unwelcome advances, followed by an adverse employment action (like demotion or termination), a victim does not have to prove financial losses in order to win a sexual harassment claim. Sometimes, the conduct alone, regardless of the employment outcome, is enough to qualify as harassment.
The age-old problem with sexual harassment claims (as with most other forms of discrimination) is that a case often revolves around the word of the victim vs. the word of the accused. Sexual harassment cases typically devolve into a classic case of he said/she said – making it hard to prove the alleged conduct actually occurred. But just because harassment may be hard to prove, doesn’t mean it is impossible.
The Texas Law That Can Help You Prove Harassment
The good news is that Texas law may help you overcome the “he said/she said” discrepancy. Texas has a “one-party consent” wiretapping law, which means you can record conversations as long as one party to the conversation consents.
If you’re experiencing repeated harassment, unwelcome advances, or other forms of sexual discrimination, you can start recording conversations on your phone. Of course, you’ll have to be proactive and know how and when to start recording in order to catch the harasser in the act. Given that many women report sexual harassment is not an isolated incident, but a series of unwelcome advances, it may be worthwhile to start recording a harasser if you have any follow-up interactions with them after the first incident.
Getting harassing statements on record may just be the definitive proof that breaks your case.
The Catch: Don’t Leave the Room while Recording
You may record a conversation as long as you are a part of the conversation, so you cannot set up a recorder and simply leave the room. Doing so would mean there are no “consenting parties” to the recording – making your evidence inadmissible in court (and illegal).
Also, the wiretapping law does not apply to communications where a speaker has a “reasonable expectation of privacy.” Basically, workplaces are (usually) considered public and not an area where an individual has an expectation of privacy. An office bathroom, however, is different. Locker rooms, changing rooms, and even nursing areas are generally considered to be private places, so taking a live recorder into any of those areas could land you in hot water. The wiretapping law certainly does not provide Texans free rein to record anyone at any time.
Experienced Sexual Harassment Attorneys Can Help
As sexual harassment attorneys, we consider it part of our job to help clients obtain evidence to bolster their claims. Audio recordings are merely one of the evidentiary tools available. We often interview witnesses, request surveillance footage, and even recover text messages and emails that can help prove sexual harassment claims. We know the kinds of proof courts prefer and can use legal means – such as subpoenas – to obtain that proof.
If you’re experiencing sexual harassment or discrimination in the workplace, it’s wise to consult with a sexual harassment attorney such as the attorneys at Jackson Spencer. Not only can we help you determine if you have an actionable claim, we can also advise you on the best ways to obtain supporting evidence. We help victims prove their claims while ensuring compliance with Texas wiretapping laws and other rules of evidence (because the last thing you want is to inadvertently break the law yourself).
Contact us for a free, no obligation consultation to find out how you can address sexual harassment in the workplace.