Employee’s Notes About Workplace Behavior Help Establish Harassment Claim

A federal district judge in Arizona has ruled that the mere fact that an employee kept notes of her interactions with co-workers was proof enough that she found those interactions subjectively hostile and should be allowed to proceed to trial on her claim of sexual harassment.

Correctional Officer Kelly Hogan alleged that she was victimized by a number of acts of sexual harassment at work.  Among the many allegations were claims of:

    • being targeted with crude comments;
    • having to listen to sexually explicit stories;
    • being the subject of sexually-related gossip; and
    • being sexually assaulted in her car by a coworker.

Hogan complained to her supervisors but they took no effective action in response.

Employee’s Notes Are Discovered

At around the same time, Hogan was the subject of complaints that she was too friendly with the inmates and had been “compromised.”  During investigation of these complaints, it was discovered that Hogan had been keeping handwritten notes to document the harassing behaviors of her co-workers. After the investigation, Hogan resigned and sued the employer for sexual harassment.  The employer brought a motion to dismiss.

To establish a prima facie hostile work environment claim, Hogan needed to demonstrate: “(1) that [s]he was subjected to verbal or physical conduct of a … sexual nature; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive work environment.” In particular, the working environment must be “both objectively and subjectively offensive, one that a reasonable person would find hostile and one that the victim in fact did perceive to be so.”

The employer focused on whether Hogan subjectively found the work environment offensive.  They pointed out that her notes only referenced one of the many incidents she alleged in her lawsuit, and that when they had asked her about that incident during their investigation, she stated that “it didn’t even matter.”

Taking Notes is Proof Enough

The judge hearing the motion to dismiss explained, however, that a reasonable jury could conclude that Hogan found the sexually oriented behavior at work hostile.  Her remark that the one incident “didn’t even matter” was made in the context of an investigation into her compliance with workplace policies and therefore might not reflect her feelings about in relation to sexual harassment.

In addition, the fact that Hogan felt it necessary to maintain contemporaneous notes about her work environment could establish that she was disturbed enough to find the behavior subjectively offensive.  Based upon the totality of the evidence thus far, the judge refused to dismiss the hostile work environment claim.

Bottom Line

It is important to remember that this decision does not mean that the employee won the case; it merely says that she should have a right to proceed to a jury trial to tell her story as to why she felt compelled to keep notes about her work environment.  The employer will still have the opportunity to persuade the jury that the notes do not prove that harassment occurred and that their silence on all but one of the alleged events should be viewed as evidence that those events never actually occurred.

Still, it is troubling that the judge concluded that the mere act of taking notes was sufficient to possibly demonstrate that the employee subjectively found the workplace hostile.

This reminds you to take harassment claims seriously and follow your policies when claims are made.  If an employee has gone to the trouble of documenting the behaviors, ask to see the notes, review them carefully and follow up on all hints of harassing behaviors.  If you follow these rules, those notes actually could end up benefiting you in a harassment claim even more than they benefit your employee .