Building a Record of Workplace Harassment or Discrimination: Notes, Messages and Documents

A useful record is a dated, factual account of what happened, plus the messages and documents you already have, kept intact. Two legal rules frame everything else on this page. First, evidence must not be destroyed: in New York courts, a party who destroys evidence it had an obligation to preserve can be sanctioned if the evidence was relevant and was destroyed with a culpable state of mind.⁠^[1] Second, a person does not have to collect the employer's files alone, because in a lawsuit both sides exchange evidence under court rules.⁠^[2]

Most of what follows is practical guidance, and it is labeled that way. Statements of law carry a numbered source.

What does the law look at, and what record helps?

Each kind of record matters because it speaks to a question the law asks. The questions differ by layer.

Legal question	Where it comes from	Records that speak to it
What happened, and was it because of a protected characteristic?	Under the New York State Human Rights Law (NYSHRL), harassment is unlawful when it subjects a person to inferior terms, conditions or privileges of employment because of a protected category.⁠[6] Under the New York City Human Rights Law (NYCHRL), the employee must show being treated less well than other employees because of a protected characteristic.⁠[7]	Notes of exact words and acts; messages; how others were treated
How serious or frequent was it?	The EEOC says harassment becomes unlawful under federal law where enduring it becomes a condition of continued employment, or where it is severe or pervasive enough to create a work environment a reasonable person would consider intimidating, hostile or abusive.⁠[8] The NYSHRL applies regardless of whether the harassment would be considered severe or pervasive.⁠[6] Under the NYCHRL, courts have held that severity and pervasiveness bear on the scope of damages and not on liability.⁠[9]	A dated log of each incident
Did the employer know?	Under federal law, as the Second Circuit applies Title VII, an employer can be held liable for coworker harassment if it knew, or with reasonable care should have known, about the harassment and failed to take appropriate remedial action.⁠[10] Under the NYCHRL, an employer is deemed to know what a manager or supervisor knew.⁠[11]	Copies of complaints; who was told and when; replies
Was the complaint protected activity?	Under federal law, the employer must have understood, or reasonably could have understood, that the complaint was directed at conduct Title VII prohibits.⁠[3]	The complaint itself, in its exact words
Was later treatment connected to the complaint?	Under federal law, causation can be shown indirectly, by protected activity followed closely by adverse treatment or by different treatment of similar coworkers, or directly, by evidence of retaliatory animus.⁠[12]	Dates of the complaint and of each change afterward
Do the employer's explanations hold up?	Under federal law, an employee may prove retaliation by showing weaknesses, implausibilities, inconsistencies or contradictions in the employer's stated reasons.⁠[13]	Performance reviews, warnings and written reasons you were given
What was the effect on you?	Under the NYSHRL, mental anguish may be proved by the complainant's own testimony, corroborated by the circumstances of the misconduct.⁠[4]	Notes about health, sleep and work; treatment records if any

For how these pieces fit together in a case, see how discrimination is proved and proving retaliation: timing and causation.

What should I write down?

Practical guidance. A log written close to the events is easier to rely on than memory months later. For each incident, note:

• the date, time and place;
• what was said or done, in the exact words where you can recall them;
• who did it and who else was present or heard about it;
• how you responded, and whether you told anyone;
• any effect on your work, schedule, pay or health.

Write each entry soon after the event, date it, and do not go back and rewrite old entries; add a new dated note if you remember something later. Keep the log factual. Describe what you saw and heard, and mark anything you learned secondhand.

Witnesses can keep notes too. New York State's model sexual harassment prevention policy lists recording or taking notes on an incident, to benefit a future investigation, among its five methods of bystander intervention.⁠^[14]

Which messages and documents should I keep?

The State model policy says calls, texts, emails and social media use can constitute workplace harassment even when they happen away from the premises, on personal devices or outside work hours.⁠^[15] It says the same of virtual meeting platforms and messaging apps used in remote work.⁠^[16] Those communications can also be a record of what was said. The page on remote work and online harassment covers that conduct.

Practical guidance. Things commonly worth keeping, when they are already yours:

• texts, direct messages, voicemails and social media messages sent to you, saved so the sender, date and time are visible;
• your own complaint and any reply to it;
• documents the employer gave you to keep, such as an offer letter, the handbook, performance reviews, pay records and written warnings;
• a calendar of schedule changes, assignments or discipline that came after a complaint.

Some of these are documents State law has the employer hand over. Under New York State Labor Law § 201-g, every employer must give each employee its sexual harassment prevention policy in a written notice at hiring and at every annual training.⁠^[17] Under Labor Law § 195(6), an employer must notify a terminated employee in writing of the exact date of termination within five working days.⁠^[18]

The employer's own files

This page does not cover whether an employee may copy, forward or keep an employer's internal, confidential or privileged documents. That depends on facts this page cannot weigh, and it is a question for a lawyer before anything is copied, sent to a personal account or removed.

What the law provides is a formal route to those records. In New York courts the parties exchange evidence under a rule calling for full disclosure of all matter material and necessary, and in federal court discovery reaches any nonprivileged matter that is relevant to a claim or defense and proportional to the needs of the case.⁠^[2] Inside the workplace, the State model policy has the employer's investigator take steps to obtain and preserve documents, emails and phone records relevant to a complaint.⁠^[19] A practical step that fits within those rules is to write down what records exist and where: which email thread, which shared folder, which camera, which timekeeping system.

Keep in mind that work accounts are not private storage. Under New York Civil Rights Law § 52-c, a private employer that monitors employees' telephone, email or internet use must give prior written notice on hiring and obtain the employee's acknowledgment.⁠^[20] See employer monitoring, email and personnel files.

Why you should not delete or change anything

The destruction of evidence is called spoliation. In New York courts, a party seeking sanctions for spoliation must show three things: that the party having control over the evidence had an obligation to preserve it when it was destroyed, that it was destroyed with a culpable state of mind, and that it was relevant to the claim or defense.⁠^[1] Where the destruction was intentional or willful, relevance is presumed; where it was negligent, the party seeking sanctions must prove relevance.⁠^[1] The test is written in terms of whichever party controls the evidence.

Practical guidance. Once a workplace problem looks like it could become a complaint or a claim:

• leave message threads, posts, photos and voicemails as they are, including the unflattering ones;
• turn off auto-delete settings on messaging apps and back up your phone;
• keep original files, and do not crop or edit screenshots;
• keep a note of any device or account you lose access to, and when.

What are the limits on gathering evidence?

• Recording. In New York it is the crime of eavesdropping to record a conversation without the consent of at least one party when the person recording is not present at it; a participant who records is outside the definitions.⁠^[5] Recording conversations at work explains the State and federal rules.
• Other people's accounts. The same New York Penal Law section makes it eavesdropping to unlawfully engage in "intercepting or accessing of an electronic communication."⁠^[5] Reading a coworker's or manager's email or messages without permission is not a way to build a record.
• Pressure on witnesses. The EEOC's view of federal law is that it is not reasonable opposition to badger a subordinate employee to give a witness statement and attempt to coerce her to change it.⁠^[21] Ask; do not push.
• Your job duties. The EEOC's view is also that opposing discrimination is not a license to neglect job duties.⁠^[21] Do the record-keeping on your own time.
• Accuracy. A record helps only if it is true. Do not guess at dates, add detail you do not remember, or ask anyone else to.

Who should see the record, and when?

An internal complaint puts your account in front of the employer, and the State model policy keeps investigations confidential only to the extent possible.⁠^[19] See how to report harassment or discrimination and is what I tell HR confidential? A consultation with a lawyer works differently: under New York's Rules of Professional Conduct, a lawyer may not use or reveal information learned from a prospective client, even if no client-lawyer relationship follows, except as the rules would permit for a former client.⁠^[22] The checklist in what to bring to an employment lawyer consultation lists what is usually useful.

Dates in the record also drive filing periods. The State model policy warns that an internal complaint does not extend the time to file with the Division of Human Rights or in court.⁠^[23] The periods themselves are set out in New York employment claim deadlines.