When it comes to lawsuits for discrimination and harassment, the proof is often “he said, she said.” That is, unless what he or she said was recorded. But can you record your coworkers’ sexual harassment at work? Or will doing so violate other New York privacy laws?

In this blog post, I will discuss New York eavesdropping and wiretapping laws and how they come into play in sexual harassment cases. I will address the rules for in-person and telephone conversations, and answer the question of whether you can record your coworkers’ sexual harassment at work, along with whether you are protected if you do.

Proving Sexual Harassment Requires, Well, Proof

When sexual harassment happens at work it can be intimidating, demeaning, and hurtful. Depending on who is targeting you, standing up to your coworker or manager can even put your job on the line. When you are finally able to come forward, you may feel like you have done enough. Human Resources, the Equal Employment Opportunity Commission (EEOC) or your attorney should take it from there. But it’s not enough to simply say something happened. Whenever you are able, you need to prove your side of the story.

In a sexual harassment lawsuit, the person filing the lawsuit (the Plaintiff), is the one who initially has to prove his or her case. While some court battles are won just on the testimony of the parties, more often, you and your attorneys will have spent months gathering proof to support your side of the case. That could include witnesses, emails and printouts of office chat logs, workplace reports or assessments, security camera footage, and sometimes recordings made by the Plaintiff themselves.

Is Recording Your Coworker “Wiretapping”?

Many types of sexual harassment lend themselves to physical proof. Statements made in emails or company chat programs can be printed. Inappropriate pictures can be photographed. But what about verbal sexual harassment? The best proof of this kind of behavior is to catch them in the act, but is it legal to record your coworker’ sexual harassment at work?

New York’s wiretapping law is a “one-party consent” law. That means it is illegal to record or eavesdrop on a telephone conversation or in-person discussion unless at least one party to that conversation agrees to it. That one party can be the person doing the recording. To consider how the wiretapping law applies to workplace sexual harassment, let’s look at a sample scenario:

Maria and Clara are housekeepers at a large hotel. They both are repeatedly harassed by two of the cleaning staff, Tony and Juan. The men make rude jokes to each other about the women, grab them as they go past, and repeatedly ask both women on dates to local strip clubs. Maria and Clara are both planning to file complaints with the hotel, but they want to record the men’s behavior first. They both have a habit of using their smartphones to listen to music and drown out the men’s comments, so they decide to use a voice-recording app to document what they experience.

Can Maria Record Tony’s Unwanted Advances?

Let’s start with the most straightforward way to record your coworkers’ sexual harassment at work: when the harasser is talking directly to you. In this case, Maria is a party to the conversation — Tony has come up to her and is talking to her. Since she consents to the recording, the New York eavesdropping law does not apply and she can legally record the conversation.

Can Clara Record Tony and Juan’s Jokes?

Now let’s say that Clara comes upon Tony and Juan joking about the girls among themselves. In this case, she is not a party to the conversation, just an observer. Under the “one-party rule”, unless either Tony or Juan has agreed to the recording, it is illegal for Clara to use her app to document their jokes. However, if she joins the conversation, possibly by objecting to their jokes, she can become a party to it and consent to the recording of anything once she has joined in.

Can Maria Video Record Juan Sexually Harassing Clara?

Maria and Clara want to try to document the physical sexual harassment they experience, as well. They agree to record each other any time Tony or Juan are around to try to catch them in the act.

Under New York law, employers and individuals have an implied right to use video recordings in public places, including the workplace. The only exception is in areas where a person would reasonably expect privacy (like bathrooms or locker rooms). However, this law allowing video surveillance doesn’t overrule the eavesdropping statute, so generally employer-placed cameras will be video-only. In Maria and Clara’s case, they agreed to record each other ahead of time, so when Juan approaches Clara and tries to reach under her skirt, Maria is well within her rights to hit record on her phone.

A Sexual Harassment Attorney Can Help You Collect Proof for Your Case

Knowing what you can and cannot do to record your coworkers’ sexual harassment at work can be difficult. And getting the state eavesdropping law wrong can have serious, even criminal consequences. That’s why it is a good idea to talk to a sexual harassment attorney early. At Eisenberg & Baum, LLP, our sexual harassment attorneys can help you create a plan to collect evidence of your harassment and prepare to prove your case to your employer, the EEOC, or the court. If you are facing sexual harassment at work, we can help. Contact Eisenberg & Baum, LLP, today to talk to a sexual harassment attorney.