Is This Sexual Harassment or Not?

Many people experience uncomfortable behavior at work, but as they process it afterwards, they find themselves questioning what they experienced. “I don’t know if this is sexual harassment – am I overreacting?” is something sexual harassment lawyers hear constantly. Sexual harassment is too often subtle, normalized, or framed as joking behavior. This makes it hard for victims to call it out and protect themselves.

California has high standards for employers – employees here aren’t expected to grin and bear unsafe, harassing conduct that makes their workplace uncomfortable. Ready to discuss your workplace sexual harassment case? Call Taylor & Ring today.

What does California law say about sexual harassment?

Under California law, sexual harassment is typically defined in two different ways in the workplace: quid pro quo sexual harassment and hostile work environment sexual harassment.

Quid pro quo sexual harassment occurs when a supervisor conditions a tangible job benefit or employment decision (such as hiring, firing, promotion, or compensation) on an employee’s acceptance of sexual advances. Hostile workplace environment sexual harassment happens when someone engages in harassment via their conduct or comments that are severe or pervasive enough to create an intimidating, hostile, or offensive work environment. Note that this type of harassment does not have to be aimed at you for you to be a victim. Even being around that type of severe or pervasive behavior can be enough to contribute to a hostile work environment.

While many people think of sexual harassment as largely physical, it also includes verbal and visual conduct. It also doesn’t always have to be persistent or ongoing to be considered sexual harassment. If one incident is severe enough, it may be considered sexual harassment.

Common situations people question and how harassers exploit that

If you’re wondering if what you’re experiencing at work is harassment, start with these common scenarios.

Sexual jokes, inappropriate comments about someone’s appearance, and suggestive remarks are too often dismissed as humor. But repeated or targeted comments can create a hostile work environment – whether or not the speaker insists that they were “just joking.”

Unwanted hugs, intentionally brushing against someone, standing too close, or stopping someone from moving away are all forms of contact that cross boundaries. People sometimes assume that physical contact has to be overtly sexual to be inappropriate, but that isn’t the case. That coworker who refuses to let you leave until you give them a hug – no matter how much you clearly don’t want to give them one – is also engaging in inappropriate conduct.

Explicit images, sexual memes, pornographic images or videos, and suggestive hand gestures can all qualify as harassment. Whether this behavior happens in person or remotely over video calls, it can be harassment.

If someone expresses interest and the other person rejects them, they must accept that. If they continue to invite the other person out, send unwanted messages, or make inappropriate comments, they may be engaged in sexual harassment. Persistence puts the victim in a very uncomfortable and unsafe situation, especially if their harasser is a supervisor, manager, or anyone else with power over them.

When victims look back at sexual harassment, they often see that it escalated with time. This is because harassers know that many people are inclined to give them the benefit of the doubt. They exploit that by starting off with ambiguous behavior that they can deny if called out. If that initial behavior isn’t called out, they escalate, gradually pushing the other person’s limits. They may:

• Make comments or gestures that are easy to dismiss

• Escalate gradually to see how much they can get away with

• Write off their behavior as friendly, misunderstood by the other person, or cultural in nature

• Rely on their authority to get away with inappropriate behavior

• Rely on the other party’s fear of being labeled as difficult or being targeted for retaliation

When a victim finally does speak up and say that they’re uncomfortable with what’s going on, you’ll often see the harasser deny all wrongdoing. They may call the victim out for being too sensitive, unable to take a joke, or so obsessed with themselves that they think everyone wants them. This makes victims less likely to report future conduct because they question their own judgment.

Does intent matter?

In most cases, intent is not the focus. The impact on the victim is what matters. A person does not need to intend harm for their conduct to be harmful and illegal.

The courts look at whether the behavior was unwelcome and if it affected the employee’s work environment.

When conduct becomes severe or pervasive

CACI No. 2524 outlines the instructions given to jurors who have to determine whether sexual harassment is considered severe or pervasive. They are expected to consider all the circumstances, including:

• The nature of the behavior

• How often and over what period of time it occurred

• The situation in which the behavior occurred

• If the behavior was humiliating or physically threatening

Can an employer be held liable for workplace sexual harassment?

An employer can be liable for workplace sexual harassment. Per CACI No. 2521A, they may be strictly liable for any sexual harassment from a supervisor, regardless of whether or not they were aware of it happening. If someone other than a supervisor, such as a co-worker or client, is accused of sexual harassment, a workplace may be liable if it knew or should have known about the harassment and failed to take immediate and appropriate corrective action.

Don’t take on workplace harassment alone – we’re here to help

At Taylor & Ring, we know how workplace sexual harassment can grind productivity to a halt and leave you fearful to even clock in each day. Let’s talk about your next steps. Just call us today or reach out online.