A Short Guide to Understanding Evidence in Workplace Harassment Investigations
What does an effective workplace harassment investigation look like?
An effective investigation tells the story of what happened, and how it is known what happened. The facts are the story and the evidence is the means by which the facts are known.
Workplace Harassment Defined
Only material facts need to be established. To understand what facts are material, we need to know the definition of workplace harassment. In most jurisdictions, it is as follows, “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”
The essential elements of the definition can be broken down:
- The word “course” means repeated. However, case law has established that a very serious single incident can also be harassment.
- “…comment or conduct”. Harassment can be words or actions.
- “Vexatious” means offensive.
- “…known or ought reasonably to be known to be unwelcome.” Objectively, did the harasser know their comment or conduct was unwelcome? For example, did the person who was harassed tell them it was unwelcome? Subjectively, would a reasonable person similarly situated to the complainant consider the conduct to be unwelcome? For example, in a typical sexual harassment scenario, would another reasonable woman consider the conduct to be offensive?
Material facts are those that are related to each of the essential elements of the definition.
For a fuller discussion on the definition of harassment, including examples, please refer to A Short Guide to Understanding the Definition of Workplace Harassment.
Prima Facie Case
Does the complaint, on the face of it, meet the definition of harassment? In other words, if proven, would the allegation or situation amount to harassment according to the definition? If the answer is yes, law uses the Latin term “prima facie” to describe the case.
Of course, the case is not proven at this point as no evidence other than the complainant’s statements have been obtained.
If there is no prima facie case of harassment, approaches other than investigation should be considered.
The Investigation Formula
The investigation formula is therefore:
Prima facie case + evidence = material facts = proof that harassment did or did not occur
Evidence
What is evidence?
Evidence is information that is admissible proof of the facts in issue. It is usually something that can be perceived by the senses. It can be seen, heard, felt, tested or smelled. The stronger the evidence, the stronger the belief in the existence of fact.
In most workplace harassment cases, statements, including statements from the person making the complaint and the person responding to the complaint (the parties) and witnesses make up the bulk of the evidence.
What is not evidence? Opinions, thoughts, conclusions are not evidence, but inferences drawn from evidence. For example, a party or witness’ assessment of the good (or not so good) character of another person is not evidence.
Types of Evidence
Direct
Leading directly to the fact in issue. Direct evidence includes:
- Statements by the parties and witnesses who were present. “Eyewitnesses” or persons who were present at the time of the facts in dispute.
- Physical evidence (pictures, paper and electronic documents), for example, a video of the respondent putting offensive graffiti on the complainant’s locker or an email exchange between the parties.
Direct evidence is strongest and should be given the greatest weight in assessing the case.
Indirect
Establishes facts that – when taken with other facts – support the findings of an investigation. Indirect evidence includes:
- Circumstantial evidence.
- Evidence that helps to establish the consistency of the story and its timeline.
It is not as persuasive as direct evidence.
Similar Fact
Shows that a person engaged in conduct similar to the conduct in question, perhaps with other persons or the same person at another time, for example:
- A former employee’s statement that she left her employment because of sexual harassment by the same employee in question.
The more similar conduct, the stronger the case. However, similar fact evidence does not carry the same weight as direct evidence. It is most often relevant in sexual harassment cases.
Hearsay
Statements made by someone who is not the witness and offered for its truth. Examples of hearsay evidence include:
A witness’ statement that the Complainant told her the Respondent sexually solicited her.
It is always best (but not always possible) to obtain evidence directly from the source. Where possible, interview the person that made the statement rather than relying on the person recounting the statement. In some situations, hearsay can be used but should be given appropriate weight. Direct evidence is stronger.
Expert Evidence
Acknowledged experts’ opinions are sometimes admitted as evidence. For example, in sexual harassment cases, experts have explained the historical effect of sexual harassment on women and why, as a result, they sometimes fail to report incidents in a timely manner.
Standard of Proof
How far does an investigation have to go to prove or disprove workplace harassment?
To understand the standard in workplace harassment, it is helpful to make a comparison. In criminal law, to have a conviction, there must be proof beyond a reasonable doubt. By contrast, the standard for workplace harassment is on a balance of probabilities.
Have the scales tipped to one side or the other? Is it more likely than not that harassment occurred? Is the evidence in support of the allegations sufficiently credible to lead a fair-minded person to make a finding of harassment?
Understanding Evidence
An effective investigation gathers sufficient evidence to prove or disprove the material facts leading to a conclusion as to whether or not workplace harassment occurred. The evidence must be weighed according to its type and a determination made on a balance of probabilities.