Being harassed and discriminated against at work, what do you do? DOCUMENT.
Obviously, immediately consult with a competent employment lawyer, but in the meantime document what is happening by writing down who said or did what to who, and who was present that might have overheard the harassment.
Credibility Is Critical
We live in California where employers provide training to their supervisors on their anti discrimination and harassment policies. So what happens? Harassers will rarely make their harassing comments in a room full of employees. In many situations it is done privately and made only so the intended victim can hear it. On occasion, there may be a close confidant of the harasser who will not corroborate the victim’s testimony.
Trials are intended to be a search for truth but sometimes jurors are stuck with deciding who is telling the truth with only an accusation and a denial to go on. What do they do? They go with the person they find credible. But how, how do jurors determine credibility? They are given a jury instruction from the judge regarding witnesses and credibility. See CACI 5003 – Witnesses. As you can see it largely leaves the determination of credibility to the individual juror who often makes that determination through speculation and interpretation of the non-verbal cues and body language of each witness.
Jurors sometimes will reach the conclusion that a witness lacked credibility because they stammered, hesitated, or seemed nervous during a particular line of questioning. However, experienced trial counsel will have prepared their witness with endless hours of practice to avoid such unintentional cues. Ideally, the juror would like the cross-examining attorney to catch the witness in one of those courtroom drama style gotcha moments and watch the witness squirm. Again, experienced litigators will have had their witness prepared with their deposition testimony and will have practiced mock cross examinations with them. Do not rely on the harasser cracking under pressure.
Build Credibility With The Details
The key testimony of the alleged harasser is often simply a denial, “No” or “I’ve never said anything like that.” The victim can testify about the details of their interactions with the alleged harasser, their co-workers, and the work environment in general. Assuming the testimony is relevant, unimpeachable, and corroborated by other witnesses, the victim’s lawyer is telling a story and using testimony to bolster the victim’s credibility. Is it definitive? Definitely not, but when done right (i.e. quickly and not boring the jury), it can be effective.
In interviewing countless numbers of people with claims of harassment, people often respond to my initial question of “Tell me about the harassment” with the general statement “He harassed me all the time.” I respond, “Okay, can you give me an example of what he did that you didn’t like.” The person responds, “Oh he would just say sexual things to me all the time.” Now I have to be direct, “What exactly did he say?” The person responds, “He said he liked my body.” My question, “Okay, when did he say that to you?” The person responds “Oh he would say that all the time.” You have just lost the jury; half of them are rolling their eyes and the other half are going to sleep. This person may have been unlawfully harassed but is just not articulate or has been traumatized by the events and is hesitant to get into the details. Or, too often, they are grossly exaggerating (intentionally or unintentionally) how often a statement was made. Competent trial counsel understand that credibility is also on them as the victim’s lawyer to get the details well before deciding to file a lawsuit and making such serious allegations.
Document, Document, Document
It is hard when you’re on the witness stand, in the deposition room, or even when you’re being interviewed for a potential claim to remember exactly when, where, what was said, and who was present with the precision that a litigator demands. In some cases, testifying at trial can be years after it happened. This is why you should write it down when or shortly after it happens.
Go to Staples or Office Depot and buy a notepad. Don’t document in your everyday calendar. In just about every case I have litigated defense counsel has sent the following request:
If you wrote your notes of what happened in your personal calendar, now you need to produce it. Your lawyer will be investing in boxes of Sharpies to redact out just about the rest of your calendar or diary which will undoubtedly cause the defense counsel to inquire what is being hidden. But, if you don’t write down notes in your personal calendar or diary, the other side is likely never going to be entitled to a copy of your personal items.
More importantly, “DOCUMENTS” also often includes digital files stored on a computer or smart phone, which becomes significant when a person takes notes on their online calendars, texts and/or emails. Think twice before using your work computer, even if working remotely on the company laptop, to take notes or email a description of events to yourself. Your company undoubtedly has access to your work email account and documents on the computer. Even if you are using an online email account like Gmail or Yahoo, if on your company’s lap top or phone, your employer’s IT department may be sophisticated enough to record your key strokes and will make an argument to get access to those accounts. You also may be violating your employer’s policy concerning internet use or personal use of company equipment. Why give them the excuse? Use your time at work to work and make your notes at home. See Work Hard Until The End – The Mixed Motive Defense.
Your simple store bought note pad used exclusively for this purpose is not going to be evidence that you are telling the truth, but it is going to help you remember the details so you do not generalize and exaggerate. Your notes may contain details that while not admissible, provide your lawyer with leads to people that may have critical facts that support your claims.
Another Avenue Of Documentation Is Reporting To Others
Your Employer’s HR Department Should Document Your Complaints
The vast majority of employers in California have paid money to create a line of communication for grievances. Use it if you can. Will it help you? Sometimes yes, and sometimes no. The point here is that those professionals are to document your claims. However, they are typically employees of your company and tend to look to protect the company first, then the employee. They may consciously or unconsciously fail to take down critical facts, so it is still helpful to take your own notes.
Doctors Will Usually Record Why Their Patient Is Seeing Them
If you are visiting your doctor for medical treatment because of the harassment or discrimination you are experiencing, tell your medical provider exactly that. (It should go without saying, but tell the medical provider that is taking notes. You may have a great relationship with your doctor’s staff, but they will not likely remember the details.) Doctors generally have little time to get into your employment issues and can be notoriously bad note takers. Be clear and concise as possible.
You Still Need To Prove Your Claims
Following this course will not mean that you will win your lawsuit. You must prove your claims that you were harassed or discriminated against unlawfully. Document events and conversations in detail to help you and your lawyer prove your case. To maintain some privacy, do not use your personal items, like a family calendar or diary to document events.
Use Common Sense
This is not intended to be legal advice, but rather this is a general common-sense approach to a difficult situation that employees face. It is not applicable in all situations and it may not be applicable in yours. If you feel you are being treated unfairly in the workplace, contact me, or another competent employment law attorney for legal advice for your specific situation.
This article is made available by THE TIBOR LAW FIRM, A.P.C. for educational purposes only as well as to provide general information and a general understanding of legal issues, and not to provide specific legal advice. By reading this and/or commenting, you understand that there is no attorney client relationship between you and THE TIBOR LAW FIRM, A.P.C. The information contained herein should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.