In New York City, sexual harassment is considered a form of unlawful sex discrimination. In order to assert a claim for sexual harassment in court, a complainant must provide evidence of the allegedly harassing behavior. State and federal rules of evidence, along with state laws dealing with recordings of conversations and phone calls, outline methods for preserving and presenting evidence of sexual harassment.
Forms of Sexual Harassment
The law defines sexual harassment as either (1) requests or demands for some sort of sexual activity as a condition for obtaining or keeping employment or favorable workplace treatment; or (2) unwelcome sexual conduct that creates a hostile work environment. Sexual harassment often takes the form of verbal or written communications, as well as physical conduct like unwanted touching, groping, or more. A complainant can offer evidence in the form of eyewitness testimony, written communications, and recordings of conversations or exchanges, subject to evidentiary rules and state law.
Rule 801 of the Federal Rules of Evidence is perhaps best summarized as a restriction on the use of out-of-court statements as evidence in court. It has many exceptions and a very important exclusion: statements by an “opposing party,” such as a defendant, are not considered hearsay and are therefore admissible as evidence. Fed. R. Ev. 801(d)(2).
Individuals who personally witnessed acts of harassment can testify in court to what they saw. Since a defendant’s statements are not hearsay, they can also testify about harassing statements they heard. They may be subject to cross-examination about their specific testimony and their credibility in general.
Written communications from an alleged harasser are admissible as evidence, since they are not hearsay. These could include emails, text messages, social media messages, and actual written statements. The complainant must be able to authenticate the writings, meaning they must demonstrate that they originated from the defendant. See Fed. R. Ev. 901.
Recordings of conversations are often the most direct evidence of harassing behavior, but they are subject to a complicated series of laws that could lead to legal trouble for the person making the recording. Federal law allows recordings of conversations, both in-person and via telecommunications, as long as at least one person participating in the recorded conversation has consented to the recording. 18 U.S.C. § 2511(2)(d). A person can therefore record themselves talking to another person without that person’s knowledge. This is known as “one-party consent.” A law requiring consent from all parties to a conversation is called “two-party consent.” A person in a state with a one-party consent law could incur legal liability under another state’s two-party consent law if they record a phone call to a person in that state without their consent.
New York has a one-party consent law for any type of communication. N.Y. Pen. L. §§ 250.00, 250.05. Recordings of conversations are admissible as evidence as long as they meet the one-party consent standard. N.Y. CPLR § 4506. Connecticut’s laws are mixed, allowing recordings of in-person conversations with one-party consent, Conn. Gen. Stat. §§ 53a-187, 53a-189, but requiring two-party consent to record a phone call, id. at § 52-570d. California requires two-party consent in all cases. Cal. Pen. Code § 632.
The sexual harassment lawyers at Phillips & Associates advocate on behalf of New York City workers in claims for unlawful workplace practices like sexual harassment. To schedule a free and confidential consultation with a member of our team, contact us today online or at (866) 229-9441.