Sexual Jokes at Work: Harassment?

Are Sexual Jokes at Work Harassment?

Federal and California laws state that employees and employers are entitled to a productive and safe work environment, free from harassment. Here’s what you need to know about sexual jokes at work and whether they are legally considered harassment.

Sexual jokes may either be considered harassment or sexual harassment. Under the legal definition of harassment, an individual would need to show that the sexual jokes serve no purpose other than to annoy and emotionally distress the individual. For the sexual jokes to be considered workplace harassment, an individual would need to show that the jokes are unwarranted, unwelcomed, and involving a toxic, hostile work environment.

What is Harassment?

Section 527.6 of California’s Civil Code states that conduct willfully carried out by an individual towards a specific person is harassment if the conduct had no legitimate purpose, and only served to annoy, alarm, or harass the person. Emotional distress must also be present. California law states that conduct is harassment if it would reasonably distress any individual. Therefore, if an individual experiences severe emotional distress that a reasonable individual would not have, then the sexual jokes will not reach the legal categorization of harassment.

Typically, the sexual jokes must occur over a long period of time in order to warrant being legally considered harassment. Sexual jokes directed at an individual only a few times will most likely be considered mild annoyances unless the joke itself was extremely offensive or threatening.

What is Sexual Harassment?

Sexual harassment is unwelcome and unwarranted conduct that is prohibited under federal law by Title VII of the Civil Rights Act of 1964 and under state law by the Fair Employment and Housing Act Section 12940. Conduct does not need to be motivated by sexual desire in order to be considered sexual harassment. The unwelcomed conduct can be motivated by and based upon a person’s gender identity, sexual orientation, pregnancy, childbirth, or pregnancy-related medical conditions. A hostile work environment is a form of sexual harassment.

What is Hostile Work Environment Harassment?

Hostile work environment harassment occurs when severe and pervasive conduct leads to an abusive or toxic work environment. Sexual jokes may be considered sexual harassment if they are pervasive, affect one’s capability to work, and rise above petty annoyances.

For sexual jokes to legally constitute hostile work environment harassment, an individual must show that the improper conduct was severe and/or frequent, the conduct was objectively hostile and/or abusive, and the harassment subjectively harmed them. To prove hostile work environment harassment, an individual should expect to show:

that the harassment affected their emotional tranquility in their workplace
the ways in which the harassment affected their ability to perform their job
how the harassment interfered with and/or undermined their sense of well-being
that there is a pattern of harassment

In cases where the conduct was severe, a pattern of harassment does not need to be proven. However, if jokes were mildly offensive, then they must occur over a long period of time in order to constitute hostile work environment harassment.

FAQs About Sexual Jokes at Work

Is it considered harassment if a person consistently made sexual jokes, but their motive was not to annoy, offend, or harm me?

Motive is what matters in sexual harassment cases. If the person did not intend for their comment or action to be interpreted as you did, then the joke will most likely not be considered workplace sexual harassment. To prove civil harassment, emotional distress must have occurred as a result of the sexual jokes.

If my coworker is always making sexual jokes that make me feel uncomfortable and my boss allows it to occur, what can I do?

You have a right to work in a safe and welcoming environment. If your boss is allowing for a person to make you feel uncomfortable, you can contact the California Department of Fair Employment and Housing (DFEH) to ensure that your rights start being protected.

Contact Her Lawyer

If you or a loved one has experienced sexual jokes at work, get your free consultation with one of our Workplace Sexual Harassment Attorneys in California today! We won’t charge you a dime unless you win your case.