Many workplace sexual harassment cases ultimately boil down to conflicting stories offered by the accuser and the accused. A female employee says that her male boss repeatedly commented on her body or propositioned her for sex, perhaps with the promise of some sort of workplace advancement. He says that he never did anything wrong and that she’s making it all up. One might call it a classic case of “he said, she said” (although doing so would minimize the reality that false reports of sexual assault, at least, appear to be very rare).
The case changes substantially, however, if the female employee has secretly recorded her boss’s inappropriate statements. Because then it’s not his story versus hers; it’s his story versus the hard evidence. It is for this reason that many victims of workplace sexual harassment (and other forms of harassment) may be tempted to secretly record the harassment they face. And since almost all of us carry smartphones that double as recorders, it’s easier than ever to record workplace interactions.
But is it a good idea to record your sexually harassing boss?
Unfortunately, as with many legal questions, there isn’t a simple, straightforward answer.
Employees who decide to record workplace interactions need to be careful.
To start, state laws about the legality of secret recordings can vary. In Connecticut, people generally can record in-person interactions in which they personally participate, even if the other participants are unaware of the recording. But secretly recording telephone conversations – which probably includes other electronic conversations, such as Zoom calls – is not allowed unless the recording captures “threats of extortion, bodily harm or other unlawful requests or demands.”
For another thing, employers generally do not look kindly on surreptitious workplace recording. So employees who decide to make secret recordings may be risking their jobs. This is especially true for employees who work in environments where people verbalize sensitive information – a doctor’s office, for example, or a bank. And an employee who records only targeted, private interactions with a sexual harasser is likely to be viewed more favorably than one who walks around with her iPhone on “record” throughout the workday.
The best approach for employees who are experiencing sexual harassment or any other form of workplace harassment, however, is not self-help. Don’t start by taking the matter into your own hands. Start by calling an employment lawyer who represents victims of workplace harassment. Because every situation is different, and you should have the benefit of the best possible advice to address your specific circumstances.
You don’t have to deal with this alone.