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In the BLOG

Avoid these missteps in handling sexual harassment evidence

If you file a lawsuit or request an administrative hearing in your sexual harassment case, you need evidence showing that your employer subjected you to unwelcome sexual conduct.

Understand your evidence.

Discovery is a major part of litigation. Discovery is a process where you and your employer will exchange information and documents. In general, a document is almost any type of written or recorded information.  Documents can include almost any written or recorded material you can think of, including:

  • Audio recordings
  • Calendars
  • Emails
  • Instant messages
  • Journals
  • Letters
  • Memos
  • Social media posts
  • Text messages
  • Videos
  • Voicemails

During discovery, you’ll likely have to provide your employer with documents relating to your case, except for communications you had with your attorney.

Don’t make these mistakes.

How you handle evidence of sexual harassment can make or break your case.  Everyone’s case is different, but here are a few things to avoid:

Be careful who you talk to about your case.

Lawsuits and administrative hearings typically include discovery.  Discovery is a process where you and your employer will exchange documents and information about the case.  In general, each party has to provide the other with copies of all documents and communications that relate to the case, except for communications with attorneys.  For example, say you file a lawsuit alleging that your boss forced you to go on a date with him. But you texted your friend saying you actually wanted to go on the date.  During the lawsuit, you will have to give your employer a copy of that text message.

Don’t post about your case on social media.

Most people don’t think twice about posting their thoughts, feelings, and photos on social media.  But those Instagram posts might come back to haunt you in a sexual harassment lawsuit. Let’s say you file a lawsuit alleging that your supervisor sexually harassed you during a week-long business trip last year.  But you posted several pictures of you and your supervisor laughing and spending time together during the trip. Your employer could argue that those pictures indicate that your supervisor didn’t harass you. As another example, say that you’re seeking compensatory damages for pain and suffering in your case.  In your court filings, you claim that you were depressed for the eight months following your firing and that you avoided friends and family. However, your Instagram shows that you frequently went out with friends during that time period. Those pictures damage your claim that you were depressed.

Don’t destroy or alter any evidence.

Don’t delete or destroy any existing documents, recordings, emails, text messages, voicemails, social media posts, or anything else that is related to your case.  No one can blame you for wanting to delete a creepy text message your harasser sent you, but don’t do it. That text message could be winning evidence in your case.  On the other hand, you also shouldn’t delete evidence that you think makes you look bad. Someone else may know about or have another copy of whatever you destroyed, and it makes you look guilty.  And a judge can even punish you for destroying or failing to save evidence.

How can an attorney help me?

You can always file a complaint on your own, but it may be helpful to consult with an experienced employment attorney.  A lawyer can assess the strengths and weaknesses of your specific case, help you collect evidence, and develop the strongest legal arguments for winning your case.  Alan Lescht and Associates can help. Our attorneys represent federal government employees around the world, and state and local government and private sector employees in DC, Maryland, and northern Virginia.  We handle administrative complaints with the EEOC, DCOHR, MCCR, and similar agencies, and we litigate sexual harassment cases in federal and state courts


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