Workplace Harassment: Assessing the Burden of Proof

Allegations of harassment can raise strong feelings of anger, guilt, defensiveness and vulnerability. Amidst this emotion, the people handling the incident must consider what the burden of proof will be when assessing what to do when someone is accused of harassing someone else. That burden can vary, depending on a number of factors.

• Relationship: Are the accusations from an employee or non-employee? If the alleged harasser is a non-employee — such as a customer, client or service provider — the approaches used to gather information may differ compared to when two employees are involved.
• Power Differential: Connected to the relationship is the question of power. It can be tricky when the alleged harasser is in position of direct power over the accuser, and it is a he-said, she-said incident. There may be different levels of proof here: a baseline level to determine if immediate separation is needed, and a higher level for any subsequent disciplinary or contractual action.
• Direct Evidence: A case for harassment is often best supported when there is direct evidence: a message or surveillance video are two examples. Another form of evidence is feedback from those who witnessed an event first-hand — the more people who saw it and agreed on what happened, the better the proof.
• Clarity and Strength of Policy: Does the organization have a published policy on harassment, defining it and articulating the consequences? This may be a formal policy for employees, made even stronger if accompanied by training. With non-employees, it could be in the form of a “code of conduct” or contractual conditions. If the policy articulates what is prohibited, it can help establish the baseline against which behavior and proof will be considered.
• History: The burden of proof to support any specific incident of harassment may differ slightly based on the history. The person assessing the allegation of harassment often needs to carefully and quietly assess whether a pattern of behavior has occurred, or whether this appears to be an isolated incident. Many people reporting the same behavior makes for a stronger — if more troubling — case.

It can be hard to know what to do next when handling a harassment claim. Systematically considering these five factors can help you and your human resources or legal team determine what the best next steps may be.