Can Finding Other Employees Who Were Harassed Help?

Victims of on-the-job harassment often suffer in silence, thinking they are overreacting or that no one is going to help them. As a result, a single troublesome employee or supervisor is often permitted to subject multiple co-workers to harassment and other inappropriate conduct before finally being stopped. While it may seem like being able to present a string of similarly victimized co-workers would be invaluable in employment harassment litigation, this may not always be the case.

Even when the alleged conduct falls soundly within the legal definition of actionable harassment, litigation can frequently devolve into a credibility contest between the employee who says it occurred and the offending co-worker or manager who says it did not. What’s more, the strict and nuanced rules of evidence employed in federal courts dictate that just because a person performed some act in the past does not necessarily make it more likely that the person did it again. As a result, testimony from other employees who suffered similar treatment may not be admissible in court.

In determining whether such testimony is admissible, courts must conduct a balancing test:

  • Probative value — How helpful is the testimony? Was the witness similarly situated? Did the person have the same supervisor as the plaintiff? The more closely the witness’ story resembles the plaintiff’s, the more likely the testimony would be admitted.
  • Prejudicial effect — To what degree does the testimony tend to cast the defendant in a poor light? While all testimony that is helpful to the plaintiff is usually hurtful to the defendant, testimony that damages a defendant in ways not relevant to the specific case is more likely to be inadmissible.

Judges ultimately have wide discretion in allowing or prohibiting this type of evidence. That is why New York workplace harassment attorneys should be prepared to make a strong argument if they seek to offer such testimony.


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