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WORKPLACE SEXUAL HARASSMENTCan Digital Evidence Be Used in a Workplace Sexual Harassment Case?

Workplace sexual harassment cases have historically come down to a “he said/ she said” scenario, with allegations and character judgements flying on both sides. It is especially difficult when it is the word of the employee versus that of the employer in a society that has turned a blind eye to sexual discrimination on the job. In the past, the best a victim could hope for was that a co-worker may have witnessed the abuse and would be willing to come forward, possibly putting his/her own employment at risk. Fortunately, things have changed with the digital age and the advent of ESI (electronically stored information), which can be admitted in court, in certain circumstances, as digital evidence.

What constitutes Digital Evidence?

  • Documentation of Contact with Management / Human Resources – It is important for someone who feels he/she is the victim of workplace sexual harassment to file a complaint with a manager or the human resources department as soon as possible. This documentation will help to establish how long the situation has been occurring, the pattern of abuse, and whether assistance was provided to the alleged victim once management was made aware of the problem.
  • Interoffice emails – Emails between the victim and the alleged perpetrator can be telling. Whether the contents of the emails are sexual in nature or the language is casual and inappropriate, these can make for strong evidence when piecing together a workplace sexual harassment case.
  • Private Texts or Social Media Messages – Communications between the employee and the accused employer or co-worker via text and messages on various social media platforms can shed light on patterns of harassment or inappropriate advances which may carry over into the workplace.

Discovery of Personal Emails & Digital Evidence

In recent years, judges in both the federal and state courts have ordered the discovery of digital documents including personal emails pertaining to a case.  Discovery is the legal term for the process of obtaining information prior to a trial.

Here in Massachusetts, parties to a lawsuit can be required to produce “any designated documents or electronically stored information (ESI) – including writings, drawings, graphs, charts, photographs, sound recordings, images and other data or data compilations – stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form” Massachusetts Civil Procedure Rule 34 (a)(1)(A)

5 Steps to Take If You Have Been Sexually Harassed by An Employer or Co-Worker

  • If possible, file a detailed complaint with your HR department or someone further up the ladder than the perpetrator/harasser. This will help to document the abuse and could become valuable evidence in your case.
  • Save all email, text and social media correspondences between you and the party involved.
  • Save hard copies of all emails and message documents.
  • If possible, speak with co-workers to learn if others have witnessed or fallen victim to similar behavior.
  • File a complaint with the Massachusetts Commission Against Discrimination (MCAD) within 300 days of the incident(s). The MCAD is an organization which investigates reports of all types of discrimination in the workplace and elsewhere.

Experienced Cape Cod Workplace Sexual Harassment Attorneys

If you have been victimized by sexual harassment in your workplace, you do not have to be afraid to seek help. To schedule a FREE CONFIDENTIAL consultation with Attorneys Paul and Steven Aiken directly, please call (508) 771-2266 or toll free (800) 794-2291. You can also confidentially contact us online.

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