Law protects employees when obtaining evidence of sexual harassment

Sexual harassment remains a problem in today's workforce. Despite widespread knowledge that sexual harassment is illegal as well as immoral, workers are all too often subject to discrimination, harassment or a hostile work environment because of gender.

Documenting when such occurrences happen is harder than it may first appear, however. If the facts are in dispute, it helps when bringing a claim for sexual harassment to have documentation and eyewitness testimony to corroborate claims. Proper documentation can be integral to pursuing a sexual harassment claim. How best to document sexual harassment depends on the circumstances of the situation.

National Labor Relations Act and corroborating evidence

One recent case out of Phoenix, Arizona, dealt with an employee seeking to document sexual harassment. The case arose when an employee, who worked as a cashier, sketched a copy of an offensive image that another employee drew next to her name on a workplace whiteboard. The cashier then sought out other employees to sign their name next to the sketch, documenting that the image was an accurate depiction of what appeared on the whiteboard that day.

When the employee reported the incident to management, management told her they would look into the issue but to stop asking employees to sign any documentation.

According to Section 7 of the National Labor Relations Act, employees are protected from retaliation for engaging in "concerted activity" when seeking "mutual aid or protection" from sexual harassment. In this case, decided in August, the National Labor Relations Board found that the employee was protected under Section 7 from retaliation.

However, the NLRB did not find the employer to be at fault. The employer had told the employee to stop asking others for signatures and from asking further questions but did not demote or fire the employee. The NRLB found that the employer had the right to conduct its own investigation of the incident; rather than a violation of the worker's rights, the NRLB found that asking the employee to stop soliciting other signatures was a reasonable protection of "the integrity of the investigation."

What it means

While the case had some unique characteristics, broadly speaking the case indicates a renewed support for employees who are looking to establish evidence and documentation of sexual harassment in an attempt to stop such behavior. The NRLB found that "concerted activity carried out for the purpose of mutual aid or protection," includes an individual trying to obtain signatures to evidence discrimination or harassment.

An attorney can help

While documenting sexual harassment as it occurs is a good idea, it is extremely beneficial for an employee who has experienced sexual harassment to speak to an experienced employment law attorney as early as possible. While incidences of sexual harassment are unfortunately common, each situation is unique and may require a variety of approaches when it comes to documentation and best actions moving forward. Arizona employees considering filing a sexual harassment claim should contact the skilled employment law attorneys at The Zoldan Law Group to discuss their situation.