Are you considering using technology to document an incident of workplace harassment? Workplace harassment is an umbrella term that can cover a range of verbal and physical behaviors from derogatory remarks and sexual innuendos to overt touching and assault, including sexual assault.
Where the harasser is a boss or senior colleague, employees can feel powerless to act, feeling that the organization will take the side of the other party. Fortunately, there are a number of technological aids that can help victims collect evidence. These range from the humble cell phone to sophisticated digital forensic software.
Technical forms of evidence gathering
Before we look at technical means for collecting evidence, we need to establish what kind of material is useful to record.
The content of what was said is usually important in a harassment case, particularly when the victim is being targeted verbally rather than physically. Where claims of physical harassment are made, the evidence should include who touched who and where on the body. The date, time, and location of each incident are vital as are the details of any witnesses.
In some cases, images may support the claimant’s case (videos or photographs) and the files will normally include metadata to evidence the date and time the footage was recorded.
The advantage of technology is that it provides objective evidence that may enable prosecutors to build a strong case. Voice recordings can be picked up by smartphone apps and even home digital assistants while smartphones, webcams, and digital cameras are useful for gathering visual evidence.
Where possible, all evidence should be held on personally-owned technology such as a cell phone or a laptop and be backed up. This is particularly critical if the harasser has admin access to workplace computers to prevent them from using their privilege to delete or amend the evidence.
You can also use the public information available on an employer’s or colleague’s social media accounts as evidence of harassment although you must not access private material or use underhand tactics (e.g. befriending a mutual friend) to get hold of more information. If the public information you gather suggests there could be further evidence in the account holder’s private material, a good workplace harassment lawyer may be able to obtain a court order to access those private records.
Of course, the same rules apply with your social media accounts and you can be sure that the lawyers representing the accused will be looking closely at what you post online.
One new threat that could undermine the legal system is the sophisticated manipulation of audio and video material to create so-called “deep fakes.” This cutting-edge technology makes use of artificial intelligence (AI) to learn how to mimic the voice, facial expressions, and other characteristics of a person. In extreme cases, a powerful defendant could obtain and edit online material about their accuser to make it seem that they have said or done things that they haven’t. A use case in the world of politics saw Nancy Pelosi targeted with her voice manipulated to sound as if she was slurring her words during a speech.
Deep fakes could also be used in a harassment campaign. For example, an employee or colleague’s face could be superimposed over that of an actor in a pornographic movie. Some states (e.g. California) have already enacted laws making this a criminal offense, but others are playing catch-up.
The technology behind deep fakes is constantly improving and it is surely only a matter of time before a judge or jury is swayed by a convincing piece of fake audio or video evidence.
If you have reason to believe that there is incriminating evidence on the workplace or personal computer equipment of a colleague or superior, don’t assume that just because the person has erased the documents that they can’t be recovered at a later date. Digital forensics software such as EnCase are often able to recover images and documents from hardware devices even when they have been deleted. In recent years, this software has been improved to analyze mobile devices and even cloud-based assets. Just make sure that you record the reasons for your suspicions and all relevant dates and times; this will help your attorney to get permission to investigate the harasser’s devices.
Looking beyond technology
While using social media, cell phones, and sophisticated technology can provide harassment victims with a crucial advantage, it is important not to forget other forms of non-technical evidence. Cell phones can be lost or stolen, files can become corrupted and overwritten, and online backups can fail. By keeping a hard copy of notes in a bound notebook, together with dates and times, there will always be a back-up to refer to.
Some forms of evidence are purely physical in nature and will need to be preserved carefully if you intend to use them to support a harassment case. For example, articles of clothing, furniture, or other items may need to be protected and analyzed forensically.
Making a complaint about workplace harassment
The first thing to say when talking about workplace harassment is that there is no substitute for case-specific legal advice and, even if you choose not to engage a specific workplace or sexual harassment attorney, they are often legally required to tell you whether you have a pursuable claim or not.
If a clear criminal offense has occurred, you can go straight to the police.
Otherwise, you will almost certainly have to report the harassment to your employer either before or at the same time as you report it to government agencies. The actual process you will have to follow will depend on your employer’s workplace harassment policy. There is no standard format for this so you will have to consult the company policy booklets or intranet for specific details. It is even possible that the policy will be out of step with the law if it hasn’t been updated in a while. This is another reason why the support of a lawyer is recommended.
If you are not satisfied with the outcome or you are unable to report the case through the company channels (e.g. you are an independent worker, there is no policy or your only point of contact is the harasser), you can report the case to a local, state, or federal agency. Either way, your harassment complaint will ultimately arrive at the federal Equal Employment Opportunity Commission under Title VII of the 1964 Federal Civil Rights Act. If they agree you have a case, they will issue a “right to sue” letter and you can then instruct your lawyer to commence proceedings.
What if your case is denied? In this case, you can still use public channels to expose the behavior of the harasser(s). You may not succeed in getting them fired or win any compensation but you can at least reduce the risk of other people being harassed at work. The organization may try and threaten you with legal action for disparaging the company but this is not lawful.
Harassment in the workplace can be hard to prove so using technology to record evidence of inappropriate behavior is a great way to strengthen your case. Always bear in mind that it is up to your attorney to convince the judge that your footage is relevant and reliable enough to be admissible in court.