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Filing a sexual harassment claim? Employers must keep evidence

It’s true that what’s written down in a text or an email sometimes comes off sounding different than it was intended. You can’t see the writer’s facial expressions, hear his or her tone of voice or pick up on all the other micro-cues that determine how you interpret something in person.

However, you would think that employers would have already figured out that simply deleting those electronic communications is a move that’s destined to fail — at best.

At worst, deleting emails that might provide evidence of unwanted sexual advances or offensive sexual comments could backfire on the employer in court in a very big way.

Once you’ve made your employer aware that you feel victimized through sexual harassment, your employer has a legal duty to keep safe anything that might be considered evidence in court. Naturally, that hasn’t always stopped employers from trying to hide what they can.

Fortunately, today’s forensic technology often makes it possible to retrieve emails and other electronic communications that an employer thought had been deleted.

If technology fails to do so, the employer is likely to face sanctions in court for the spoliation of evidence. Spoliation is the deliberate destruction, alteration or loss of evidence that could be material to a lawsuit.

What does this mean for you, if you’re the victim of sexual harassment?

  1. Generally speaking, you can expect those missing pieces of evidence to become of central importance to your case, even if they were relatively minor before. Nothing makes a juror more curious — or more suspicious — than something that an employer took time to destroy.
  2. The jury will be allowed to assume that the evidence — had it survived — would have been unfavorable to your employer. They may also assume that your statements about their content are true and establish your case.

In other words, your employer may very well have handed you the victory in court and guaranteed his or her own loss.

It’s always advisable to retain copies of as much evidence as you can to support your claim of sexual harassment. However, don’t panic if you suddenly find yourself locked out of the company’s computer system and you haven’t finished downloading everything you might need. Your employer most likely knows his or her duty to the law — and will suffer in court if he or she decides to ignore it.

Source:, “‘Delete’ Will Not Save You In Court: Employers Have A Duty To Preserve Email Evidence,” Dec. 04, 2017