Can I videotape someone in the restroom if they are outside the stall and fully clothed?

I have been at my company for over 20 years and have never had an issue. A few months ago, the Controller decided she did not care for me and basically has nothing to do with me not even saying ‘hi’ in the morning. I have no problem with that. The issue I have with her is that whenever I go into the restroom and she comes in, she peeks into the stall there’s a gap between the door and the frame I’m in before going into the other stall. I do not know if she does this to anyone else. Giving the fact that she does not care for me, I am concerned about reporting this to HR without some form of proof the HR assistant is in her office almost daily joking with her. She has in the past claimed someone was creating a hostile work environment and had them fired. This is not a Union company so I can see her claiming that about me to get rid of me. Can I record her doing that while I’m in the stall and she is outside it?

Asked on September 26, 2017 under Employment Labor Law, Ohio

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

What you propose is risky.
1) Generally, people have a reasonable expectation of not being filmed while in the bathroom, no matter what they are  doing there. Filing her in the bathroom could potentially expose you to liability for videoing in an inappropriate location.
2) If you inadvertantly catch *anyone* in the frame in any state of undress or doing any bodily function, it will certainly be a criminal act.
3) You cannot record sound while doing this (the rules when you can audiotape are stricted than for when you can videotape), so the most you'll get is a video of her in the bathroom, where she certainly may be (unless you are male and she is following you into the men's room, which would represent potentially sexual harassment on her part), so it's unclear how much this would help you.
Also: employers, supervisors, etc. *may* harass employees or create hostile work environments unless they are doing so due to an employee's race, color, national origin, sex, religion, disability, or age 40 or over; therefore, even if you could prove that she was harassing you, unless it was due to one of these reasons, it would be legal, and your employer could let this controller harass you.
Your best option may be to seek other employement, before she either makes your job intolerable or finds some way to get the employer to allow her to fire you.


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