Visual Harassment 101: From Lewd Gestures to Pornography in the Workplace

The term sexual harassment generally makes people think of unwanted physical contact or explicit comments, but visual harassment is also a serious issue that puts employees in uncomfortable and unsafe positions. Under California law, visual conduct alone can be considered sexual harassment, allowing an employee to take legal action.

There are many different forms of visual harassment, and you have to meet a certain standard to hold a workplace accountable for allowing the behavior to continue. If your workplace has felt increasingly unsafe and you’re not sure where to turn, let’s talk. Call Taylor & Ring now.

What is visual harassment under California law?

Per the Fair Employment and Housing Act, visual harassment is just as serious as other forms of harassment. Examples include sexual or overly explicit posters, cartoons, documents, or videos. This behavior may be considered illegal if it is:

• Unwelcome

• Based on sex or gender

• Severe or pervasive (which we discuss below)

It’s important to note that this behavior does not have to be constant or ongoing to be considered harassment. Even if something happens once, it may be considered visual harassment if it is severe enough.

Common examples of visual harassment in the workplace

Visual harassment in the workplace takes many forms, whether you work in an in-person or remote environment.

Lewd, sexual gestures include:

• Simulating sexual acts

• Repeated leering and staring

• Suggestive hand gestures

• Movements meant to sexualize or demean

Note that these gestures don’t need to be aimed at one particular person to be problematic. Even if they’re aimed at someone else entirely, someone may file a complaint because it creates an unwelcome and unsafe work environment.

This is a particularly insidious form of visual harassment that includes:

• Pornographic images on phones, computers, or tablets

• Explicit videos viewed at the workplace

• Sexual desktop wallpapers and screen backgrounds

• Sharing sexual images via workplace messaging platforms

Employees who do this often claim that any attempt to police what they have on their phone screen or computer screen at work is an effort to control them. But the fact is that other employees are entitled to a workplace free of pornography and other explicit material, no matter whose screen it’s on.

This type of visual harassment is particularly common in work settings that are slow to adopt workplace norms. It includes:

• Sexually provocative posters, drawings, and comics

• Offensive or explicit cartoons and memes

• Sexualized calendars and magazines

• Displays that clearly demean a gender or sexual identity

While this type of harassment may include graphic or explicit, note that this material does not have to be explicit to be considered harassment.

Visual harassment is enough of a problem in in-person workplaces, but it’s even fairly common in remote settings. It may occur by:

• Explicit images sent by email, text, Teams, and Slack

• Inappropriate video backgrounds during virtual meetings

• Sexual gestures made on camera

• Screen-sharing of explicit material

Even if employees are remote, an employer still has a responsibility to maintain a workplace free of harassment.

Who is responsible for visual harassment?

Almost anyone can be guilty of committing visual harassment, including coworkers, supervisors, managers, executives, owners, clients, and vendors.

It’s important to remember that harassment is not acceptable from any of these parties, and in every case, you are entitled to a workplace where you aren’t subject to harassment. However, some scenarios create an uncomfortable power imbalance that makes it difficult for employees to speak out.

Consider, for example, sexual harassment from someone you manage. It is still harmful, it creates an unsafe work environment, and you are right to report it. Now, imagine someone who is visually harassed by their company’s biggest client. Their point of contact constantly “accidentally” has pornography on their phone screen when they want to show something work-related to the employee, and they appear to enjoy the employee’s discomfort.

In the first situation, the company is more likely to take swift action and protect their employee. In the latter, the employee might be told to grin and bear it, asked if they are sure of what they saw, or told that the client’s conduct was just an accident. When the employee being harassed is in a vulnerable position, it is especially important that they protect themselves from retaliation and fallout.

Employer liability for visual harassment

Employers in California have a legal obligation to maintain a harassment-free workplace for employees, whether or not the harassment is specifically targeted at the employee making a complaint. The California Civil Rights Department urges employers to take appropriate steps when there is proof of misconduct; behavior does not even need to be full-blown harassment to warrant a manager getting involved.

When a supervisor harasses an employee, an employer can be strictly liable for that behavior per CACI No. 2521A, whether or not they knew of it. In comparison, if harassment is committed by someone who is not in a supervisory role, a workplace may be liable if they knew or should have known about the harassment and failed to take immediate and appropriate corrective action.

If an employer immediately responds to a non-supervisory complaint, conducts an investigation, and stops the behavior, they may avoid liability. However, liability may still be an issue if they created the circumstances that allowed the harassment, such as inadequate training or a failure to respond to earlier complaints from other employees.

If an employer responds to a complaint by downplaying it, retaliating against the reporting employee, or otherwise failing to take immediate corrective action, they may be liable for ongoing harassment.

What makes some harassment severe or pervasive?

Courts consider all available evidence when determining whether or not harassment is severe and pervasive. Jury instructions specifically state that jurors should consider:

• The nature of the conduct

• How often it occurred

• Over what period of time it occurred

• The circumstances of the conduct

• Whether it was physically threatening or humiliating

Instructions also specifically note that a single incident can be enough to be considered harassment and that plaintiffs do not have to prove a decline in productivity. It’s enough to demonstrate that a reasonable person subject to that conduct would find it more difficult to do their job.

Find out how Taylor & Ring can help you hold harassers accountable

If you’ve been subject to visual harassment at work, it’s time to talk to a sexual harassment attorney in California. We’re here to advocate for you, investigate your claim, and hold negligent parties liable. Call us today or reach out online now.