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What Is NOT Considered Workplace Sexual Harassment?

Posted by Eric Kingsley | Aug 20, 2023 | 0 Comments

What Is Harassment And What Is Not?

All types of sexual relationships and behavior in the workplace are not legally prohibited. And since we discuss what does constitute workplace sexual harassment, we also are providing you with situations that do not necessarily constitute inappropriate behavior.

There are some forms of sexual relationships and behavior in the workplace that are not barred under the law. Here are some of those scenarios or incidents that might not fall under the category of sexual harassment.

Singular and Trivial Behavior

If an individual makes one off-color remark on one occasion, it is not considered sexual harassment, even if the remark was sexual in nature. However, when such a comment is followed by sexual references related to the employee's sex or gender and creates a hostile work environment, it could constitute harassment.

One sexual joke or off-hand remark on its own is not considered illegal conduct. The key difference is when a comment is followed with a sexual reference because of an employee's sex and it creates a hostile work environment.

For example, when a person compliments a colleague about their dress or haircut, that does not amount to sexual harassment. However, if they make remarks about someone looking "sexy" in an outfit or suggesting that they should dress in a sexually suggestive manner to get a promotion, that could potentially amount to sexual harassment.

Examples that are not workplace sexual harassment:

  • "That's a nice outfit."
  • "You should dress more professionally."

Examples of potential sexual harassment:

  • "That skirt really shows off your behind."
  • "You should wear tighter clothes to impress your boss."

Consensual Behavior

When two parties willingly participate in a certain behavior or activity, it is consensual behavior. A number of workplaces may have policies in place that bar co-workers from dating. However, when there is no such policy in place, there is nothing that prohibits co-workers from doing so. One polite request from a co-worker would not be considered sexual harassment. But when someone persists even after you have indicated your lack of interest, such behavior could potentially amount to sexual harassment.

While a consensual relationship is not considered sexual harassment, once such a relationship has ended, employment laws protecting employees from sexual harassment still apply.  Consensual behavior is mutually desired and agreed-upon with both parties willingly participating. Although they are not legally required, many employers have policies in place that prohibit dating between co-workers.

When there is not a policy in place, it's possible that a co-worker could politely ask you out on a date. A single request would not be considered sexual harassment. Repeated requests by an individual after you have indicated you are not interested may constitute sexual harassment.

While it's not considered sexual harassment if the relationship is consensual, situations can occur once the relationship has ended. Once you have made it clear that you are no longer romantically interested, the same laws apply to protect you against both types of sexual harassment: quid pro quo and hostile work environment.

Is Non-Sexual and Sexual Harassment Limited to the Workplace?

Harassment that is sexual or non-sexual in nature is not limited to the workplace. Harassment by co-workers, supervisors or clients could occur off-site while on the job or during social events. Not all interactions between employees occur within the confines of an office building or in a work setting. Harassment that occurs outside the workplace is also unlawful.

If you have been subjected to harassment outside the workplace, it is important that you inform your employer about the harassment and take the necessary steps to make sure the harasser is held accountable. Such harassing behavior should never be tolerated, whether or not it occurs in the workplace.

Here are a few important things to know about harassment that occurs outside the workplace or an office setting:

  • The key element in a harassment case is the employment relationship that exists between the parties involved. A claim can be filed if the incident is sufficiently severe, pervasive or contributed to a hostile work environment. So, harassment claims could arise from company events, business trips and other such situations where employees interact.
  • Harassment, whether it is non-sexual or sexual, does not have to happen when employees are "on the clock." Harassment is prohibited under the law even after the workday concludes because an employment relationship continues to exist even when you are not on the clock. For example, if an employee exhibits harassing behavior in the parking lot after work or at a bar where employees gather after work, such behavior is still unlawful.
  • Harassment in the digital sphere - whether it is over email, text message, social media or video conferencing - is also unlawful.

If you have been harassed by a co-worker, supervisor or client outside your workplace, it is important that you contact a sexual harassment attorney as soon as possible to understand your rights and hold those parties accountable.

Sexual Versus Non-Sexual Harassment

Harassment is generally defined as any type of annoying, threatening and intimidating behavior that places a person in fear of their safety. Harassment may include different types of offending actions and behavior including derogatory comments, racial or homophobic slurs, putting someone in a position of physical discomfort, or inappropriately touching someone. Harassment, whether it is sexual on non-sexual, is unlawful in California.

What is Non-Sexual Harassment?

Harassment of a non-sexual nature is prohibited under Title VII of the federal 1964 Civil Rights Act. Words, conduct or actions that relate to race, age, gender, nationality, religion, ethnicity, etc., that create a hostile work environment, constitute harassment. Examples of non-sexual harassment in the workplace include racist comments, jokes or nicknames; derogatory remarks about someone's religion or ethnicity; comments about a colleague's disability; or offensive statements about an older person's age. Non-sexual harassment that creates a hostile work environment for the offended person can be reported, and appropriate action taken.

Sexual Harassment

Sexual harassment is unlawful and could be categorized into the following:

  • Gender harassment, including verbal and non-verbal actions that are hostile, offensive or exclusive toward one gender.
  • Unwanted sexual attention, unwelcome sexual advances that are verbal or non-verbal.
  • Coercion or request for sexual favors in exchange for professional advancements or perks such as a promotion or pay raise.

If you are experiencing sexual or non-sexual harassment in the workplace, it is important that you report the offenders right away and contact an experienced Los Angeles employment lawyer who can help protect your rights.

What to Watch for as an Employee

If you are aren't sure if you are being sexually harassed at your job, there are signs you can watch for that may help.  Even the most astute employees may sometimes miss signs of workplace harassment. The Equal Employment Opportunity Commission (EEOC) defines workplace harassment as behavior that creates a hostile work environment. Harassment - whether it is sexual or non-sexual in nature - could take many forms. Here are some of the signs that you may be a victim of workplace sexual harassment:

  • You are feeling uncomfortable because of your co-worker's behavior. If you believe you are experiencing these feelings of discomfort because of harassing behavior, it is important to trust yourself and look into next steps.
  • Unwelcome physical contact is another sign that you are being sexually harassed. Behavior such as cornering, rubbing your shoulders or unwelcome hugging are all red flags.
  • Receiving different treatment from others is also another sign of harassment or discrimination. For example, if your employer singles out one gender and treats members differently than those of the opposite sex, such differential treatment could be a sign of harassment.
  • Bullying in the workplace often times stems from harassment. This type of behavior often results in a hostile work environment.
  • Harassers often target several victims. So, if you are hearing that many of your co-workers are feeling similar discomfort or the sense of a hostile work environment, that is a sign for which you must watch out.
  • If you feel unsafe in your place of work, that is definitely a major red flag. If the environment at your workplace makes you feel unsafe because of its sexual nature, you may have been the victim of sexual harassment.

If you notice these or other signs of harassment in your workplace, do not hesitate to speak with an experienced Los Angeles employment attorney who can advise you regarding your rights and put an end to this type of unacceptable behavior.

Getting Help With Your Sexual Harassment Claim

If you need advice or have questions about a situation you are encountering at work, please call us toll-free at 888-500-8469 or locally at (818) 990-8300. Our firm offers free, no-obligation consultations.

About the Author

Eric Kingsley

Eric B. Kingsley is a 2023 "Best In Law" Award winner and has litigated over 150 class actions. He is also an AV peer rated attorney and a prolific speaker at various seminars on employment law.


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