Only material facts need to be established. To understand what facts are material, we need to know the definition of workplace harassment. In most jurisdictions, it is as follows, “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”

The essential elements of the definition can be broken down:

• • The word “course” means repeated. However, case law has established that a very serious single incident can also be harassment.
  • “…comment or conduct.” Harassment can be words or actions.
  • “Vexatious” means offensive.

• “…known or ought reasonably to be known to be unwelcome.” Objectively, did the harasser know their comment or conduct was unwelcome? For example, did the person who was harassed tell them it was unwelcome? Subjectively, would a reasonable person similarly situated to the complainant consider the conduct to be unwelcome? For example, in a typical sexual harassment scenario, would another reasonable woman consider the conduct to be offensive?

Material facts are those that are related to each of the essential elements of the definition.