Sex Assault in the Workplace

Documenting Workplace Sexual Assault: A Practical Guide

Documentation is often the difference between a winning and a losing workplace sexual assault case. Memories fade, witnesses leave the company, and physical evidence disappears. Careful contemporaneous documentation preserves the facts and creates a record that stands up in court, in arbitration, and in front of external agencies.

Write it down

Create a written record of the assault and any related incidents as soon as possible after the event. Include dates, times, locations, exactly what was said and done, who else was present, and how you responded. Save the document to a personal, non-work device or email account. Do not save it exclusively on employer systems, which the employer controls and can retrieve or delete at any time.

Preserve communications

Preserve text messages, emails, direct messages, and any other communications that reference the assault, the perpetrator's conduct, or your reports. Screenshots should include timestamps and the sender's identifying information. Forward relevant work emails to a personal account only where doing so does not violate a lawful employer policy and where the material is your own communication about your own case. Be cautious with confidential business information that is not related to the misconduct.

Identify witnesses

List anyone who witnessed the assault, saw the aftermath, heard the perpetrator make relevant statements, or was themselves subjected to similar conduct. Include the person's name, job title, contact information, and a brief description of what they observed. Do this early, because coworkers move, leave, or become harder to reach as time passes.

Report in writing

When you report the incident internally, do so in writing. If a verbal report is required, follow it up in writing the same day. A brief email to HR summarizing what you reported and what response you received is far more useful than a memory of an oral exchange. Keep copies of these communications on a personal device.

Medical and mental health records

If you sought medical attention or began mental health treatment, keep records of the visits, providers, and treatment. These records support damages later in the case. Communications with a healthcare provider are generally confidential; disclosure is at the employee's option in litigation.

Physical evidence

Physical evidence, such as damaged clothing, photographs of injuries, or objects used in the assault, should be preserved as it was at the time. Do not clean, alter, or discard it. Store it in a bag or box with a note identifying what it is and when it was taken.

Common mistakes to avoid

Storing everything on work systems. Anything on an employer device or account can be lost when access is terminated.
Confronting the perpetrator publicly or via text. Communications intended to confront often become fodder for cross-examination.
Discussing the case widely at work. Statements to coworkers can be misremembered or shared with the employer.
Deleting communications. Even communications that seem unhelpful should be preserved. Deleting them can create the appearance of spoliation.
Signing severance without counsel. Severance agreements often contain releases that would extinguish the case.

At John J. Zidziunas & Associates, LLC, our employment lawyers represent workers subjected to sexual assault and harassment across New York and New Jersey. To discuss your situation confidentially, call us at (212) 516-1868 or contact us here. We represent employees on a contingency fee basis with free consultations.

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