In many cases, sexual harassment is overt and obvious, and the abuser has directed their actions, behavior, or verbal abuse specifically towards one person. In these cases, the victim of sexual harassment has a clear legal right to pursue sexual harassment and abuse charges. If an employee is subjected to sexual harassment, it is important that the employee complain in writing and inform human resources and/or supervisors of the harassment. In fact, in California, courts require that an employee who has been sexually harassed, mitigate their harm by communicating complaints of offensive conduct or sexually harassing statements, writings or images to the appropriate supervisors or human resource representatives.
However, there are some cases in which sexual harassment can occur indirectly. In a workplace that is rife with sexual harassment or gender favoritism, a hostile work environment can subject employees to sexual harassment. These cases may appear less noticeable, and more subtle, but the sexually harassing conduct can subject victims to consequences either emotionally or physically. The following are 7 examples of workplace conduct that can result in indirect sexual harassment.
Sexual Harassment and Indirect Sexual Harassment Official Definitions
It is important to establish the Under federal and state laws, as well as the Equal Employment Opportunity Commission (EEOC), sexual harassment is defined as follows
Sexual harassment is any unwanted sexual advances or visual, verbal, or physical conduct of a sexual nature or quid pro quo sexual harassment, including when favoritism is given to those who participate in the conduct of a sexual nature in the workplace. Indirect sexual harassment occurs when a second victim has been offended by the verbal or visual sexual misconduct of another or is adversely impacted by the preferential treatment to others.
1) Overhearing an Inappropriate Joke or Comment
In some workplaces, there are groups of employees, or even individuals, including supervisors who engage in offensive conduct of a sexual nature. If you are an employee that overhears a lewd or sexually graphic joke or comment, you are a victim of sexual harassment, even if the joke was not directed at you, and you were never intended to hear it. Employers have a responsibility to take all reasonable steps to ensure that their workplace is free from sexual harassment, and therefore, even if you were not the intended recipient of the comment or joke, you should not have had to witness or overhear it. However, it is especially important in cases like this for the employee to make it clear that the conduct and statements of a sexual nature are unwelcome and, if the employee is considering legal action, to put those concerns of sexual harassment in writing.
While verbal testimony can constitute evidence of sexual harassment, the better rule is that if it is not in writing, it doesn’t exist. Putting complaints in writing and asking to work in an environment free from sexual harassment will always make for a stronger case if one becomes necessary. And if an employer retaliates for a sexual harassment complaint, the written complaint constitutes strong evidence of retaliation. Always make sure the complaint is polite, direct, and well-written. It helps to express how much you, as an employee, value your job and you just want to work in an environment free from employment discrimination and harassment.
2) Seeing an Inappropriate E-mail or Letter
In some workplaces, employees exchange sexually explicit material. While this is never a good idea, for conduct to constitute, sexual harassment, it has to be unwelcome. If you were the unintended recipient of an e-mail, or other images, such as a poster or graffiti, that included any nudity, sexual comments, or any sexually charged material, either related or not related to anyone in the workplace, you could be a victim of sexual harassment. Even if the recipient never intended for you to open their e-mail, or you saw a letter or poster inadvertently, you should never have to endure any type of uncomfortable or unwelcome sexual written or visual material in the workplace. An employer has a legal obligation to take all reasonable steps to prevent harassment or discrimination under California’s Fair Employment and Housing Act, so, once again, it is important to inform your employer of any sexually harassing offensive conduct.
3) Seeing an Inappropriate Poster
Workplaces often allow employees to decorate their workspaces. However, if an employee or manager makes the decision to post either a picture or joke that is sexually inappropriate in their office cubicle, on their desk, or in their office, you should not have to suffer from the aftermath of seeing such an inappropriate piece of material in the workplace. Your employer should ensure that your workplace is free from any kind of visual or written sexual material that could be construed as sexual harassment towards those who inadvertently see it.
4) Obscene Gestures
Humor is often welcome in the workplace. Sexually explicit humor that includes sexual sounds or gestures can make everyone feel uncomfortable. Obscene and sexually vulgar comments or gestures rise to the level of sexual harassment under federal and California law. If you see or hear any obscene gestures or sounds made by any employee or manager in your office, you could be a victim of sexual harassment. It is important that if this conduct is unwelcome that you do not participate in it or encourage it. Use common sense in communicating your objection firmly and politely and confirm that objection to sexual harassment in writing. And always consider contacting an employment attorney who can guide you along the way or represent you if it rises to the level where settlement negotiations or filing a sexual harassment lawsuit is necessary.
5) Discussion of Sexual Activity
Conversation around the water cooler is a tradition in America. However, that conversation should not include hostile or unwelcome comments of a sexual nature. In a case from the 1990s where the author represented a young man who was subjected to quid pro quo sexual harassment, the experienced defense lawyers dismissed it as mere water cooler talk and the trial court tersely ruled “not a sex harassment case”. The Court of Appeal disagreed and the case of Mogilefsky vs. Silver Pictures set the precedent that male on male sexual harassment violates California’s Fair Employment & Housing Act.
All employees have the right to work in an environment free of offensive or intimidating conversations or conversations involving sexual innuendo or worse. If your co-workers, one co-worker, or a manager consistently talks to others about sexual activity or their sexual interests, even if you are not the person they intended to have a conversation with, you could be a victim of sexual harassment especially if you make it clear that conduct of a sexual nature is unwelcome. Ideally, an employee should communicate this by their words, their conduct, and putting complaints of sexual harassment in writing that the conduct is unwelcome.
6) Commenting on Other Employees
Bullying should never be welcome in the workplace. Under the Mogilefsky decision, V. James DeSimone set another precedent. The Appellate court ruled that sexual harassment does not exclusively mean sexual attraction. Sexual harassment can also involve sexual conduct of a hostile nature. In some cases, where a coworker or supervisor engages in bullying, an employee may overhear a sexually charged epithet, slur, or comment regarding another employee’s body, or degrading words used to describe another employee. Even if the witness was not intended to overhear this name-calling or sexually charged comments, they are a victim of sexual harassment by having to endure unwanted sexual comments in the workplace and it is important to document that this conduct is unwelcome.
7) Witnessing the Sexual Harassment of Another Employee
A hostile work environment can also involve observing the sexual harassment of others. In fact, one of the most egregious and pernicious cases of indirect sexual harassment is when one employee witnesses a supervisor or coworker sexually harass another employee. Witnessing the sexual harassment of another person can make the employee feel uncomfortable and harassed themselves. When sexual harassment becomes part and parcel of the work experience, employees can fear for their own safety. They may wonder whether or not they will also be the victim of sexual harassment. They may also be concerned about working for a company where sexual harassment is tolerated. Additionally, they may feel afraid that the harasser will discover that they overheard the incident and become anxious and afraid of retaliation or even termination. However, if the conduct is sufficiently offensive, it is important to communicate the objection to it to the appropriate supervisors or human resources representatives.
Laws Governing Sexual Harassment
California strongly prohibits sexual harassment and is also subject to Federal law is governed that addresses sexual harassment in the workplace including Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission (EEOC) specifically defines harassment in the form of verbal abuse as any conduct that is unwelcome based on identifying factors such as race, color, religion, sex, national origin, age, disability, or genetic information.
The California Laws that prohibit sexual harassment include the Fair Employment and Housing Act (called “FEHA”) and the California Constitution. Moreover, California’s Labor Code requires employers to take all reasonable steps to provide a safe workplace.
Your Rights as a Victim of Sexual Harassment
California and Federal Law protect employees from being sexually harassed, even if the harassment is indirect. You may feel you do not have as strong of a claim regarding sexual harassment if you were not the original target of the sexual conduct or verbal abuse but rather were indirectly affected by the sexual harassment. Make no mistake that you have the legal right to a work environment free from any type of sexual assault, hostility, and harassment, even if it was not directed at you specifically. However, as discussed above, it is important to communicate those concerns to your employer. Check your employee handbook for the proper protocol, follow the chain of command, and, if there is a human resources department, make sure it is informed. Always communicate your concerns in a polite, firm, and professional manner. Don’t do anything abruptly like quitting or resigning or sending an email in anger. Consider your options including the taking of appropriate stress or disability leaves.
Essentially, if you feel uncomfortable, violated, harassed, threatened, or afraid due to the unwelcome behavior of a person in the office regarding their verbal or physical sexual behavior, even if it is directed at another person, you absolutely have the legal right to file a sexual harassment claim. To preserve your right to sue in Court a complaint needs to be first made with the California Department of Fair Employment & Housing or with the Federal Equal Employment Opportunity Commission.
Contact an Experienced Attorney
Contact V. James DeSimone Law and visit with one of our experienced attorneys today if you feel you have been the victim of sexual harassment, including verbal abuse at work due to indirect sexual harassment. You have several legal options, both at the employer level, and the federal or state level, and oftentimes the different choices can seem overwhelming. The decision to file a claim for any type of sexual harassment in the workplace can involve complicated and complex legal strategies. Our experienced lawyers offer, in appropriate cases, a free consultation to discuss your case of sexual harassment in the workplace.
Adapted from the original article.