Tips for Documenting Workplace Harassment
It is difficult to establish a workplace harassment and/or hostile-work-environment (HWE) claim when you have not suffered a tangible adverse action (such as termination, demotion, suspension, etc.) because such claims have a heightened legal standard. To have a harassment/HWE claim without tangible adverse action, you must establish the following three elements: (1) you were subjected to unwelcome verbal or physical conduct, (2) the conduct was based on your protected class (e.g., race, color, national origin, sex/gender, age, disability, religion, or genetic information); and (3) the conduct was severe or pervasive enough to alter the terms and conditions of your employment. Types of prohibited conduct include isolated incidents that are “severe,” such as sexual assault, as well as pervasive unwelcome conduct, such as repeated use of slurs or extreme bullying.
Given the heightened legal standard, plaintiffs bringing harassment/HWE claims who have not suffered adverse action should have strong and well-documented evidence to demonstrate that the harassing conduct they were subjected to was severe and/or pervasive. In determining whether the conduct at issue was severe or pervasive, courts will consider the following factors: (i) the frequency of the conduct, (ii) its severity, (iii) whether the conduct was physically threatening or humiliating, and (iv) whether the conduct interfered with the plaintiff’s work performance.
If you believe you have been subjected to harassment and/or a hostile work environment, you should begin documenting every instance of harassing conduct that will support your potential legal claim. Below are four tips to keep in mind when documenting your potential harassment claim.
(1) Keep a Chronological Harassment Log
Detail the following in your log:
Date, time, and location of the incident;
The details of the harassing conduct—i.e., what was said or done to you;
Name(s) of the individual(s) involved, including witnesses;
Your response—i.e., whether you verbally responded, walked away, reported it, etc.
Your report/complaint (if applicable)—i.e., date and details of any report to HR and/or manager, and details of any response received;
Impact on you—describe how the conduct impacted your work performance and your mental, physical, and emotional state
Maintaining the log in chronological order will make it easier to establish patterns over time, escalation in harassing conduct, etc.
(2) Maintain Your Harassment Log Somewhere Personal
You should maintain your harassment log on a personal computer or personal document that you have access to at all times, even outside of work. (You do not want to lose access to a log saved to your work computer if you are no longer employed.)
(3) Update Your Harassment Log in Real Time
You should update the log within a day or two of the harassing conduct. Contemporaneous records are more reliable, and you are less likely to forget to log an incident if you take contemporaneous notes.
(4) Save Supporting Records
You should save any supporting evidence such as emails, chat logs, photos/screenshots, and video/audio recordings. You should keep the evidence organized, for example by identifying which documents support specific entries in your harassment log.
