Verbal sexual harassment in the California workplace may be considered an abuse of employees and employers may be sued for it. As an employee, you have a right to be protected from certain types of verbal harassment in the workplace. However, it may be difficult to know if a situation you faced would be considered verbal harassment or not. Further, even if it is verbal harassment, it does not automatically mean an employee can take legal action.
It’s important to understand what is considered verbal harassment in general and when you can take legal action. We will then talk about more specifically if you can be sexually harassed verbally. For professional advice, please seek an experienced California employment law attorney.
What is Considered Verbal Harassment?
While there is no bright line rule, verbal harassment can include any of the following: (1) threats, (2) yelling, (3) cursing, (4) slurs, (5) offensive jokes, (6) insults, (7) name-calling, (8) innuendos, (9) derogatory comments, and (10) mocking. In California, verbal harassment is only illegal if it is tied to an unlawful reason. The employee must be the target of this harassment due to some protected characteristic. This means that harassment, by itself, may not be considered a crime. That being said, there are many ways in which verbal harassment can be illegal.
In dealing with any type of action against an employee, including verbal harassment, a determining factor for whether the action qualifies as harassment is whether it has created a hostile work environment. This can occur if the action is frequent, severe, or both. In addition, for the action to be considered harassment, it must be both objectively and subjectively hostile or abusive.
When it comes to verbal harassment in California, as with other violations at the workplace, the law that provides the greatest protection to the employee is the law that will apply. The following laws may apply when there is an incident of verbal harassment in the California workplace:
Title VII of the Civil Rights Act of 1964 – this federal law prohibits discrimination on the basis of race, color, religion, sex, or national origin. Under Title VII, certain forms of verbal harassment may be considered discrimination depending on the basis for the harassment.
The Fair Employment and Housing Act (FEHA) – this California law protects employees against several types of discrimination and harassment. This law even extends to others such as independent contractors, job applicants, and unpaid interns. Unlike Title VII, FEHA applies their anti-harassment provisions to all private, state, and local employers, regardless of the number of employees.
The Age Discrimination in Employment Act of 1967 – this federal law prohibits employment discrimination (including harassment) against anyone at least 40 years of age.
The Americans with Disabilities Act – this federal law protects employees with physical and mental disabilities from discrimination and harassment based on their disability.
The California State Constitution – similar to Title VII, California’s state constitution prohibits discrimination (including harassment) against employees on the basis of sex, race, creed, color, nationality, or ethnic origin.
While any of these laws may be applicable to a situation involving verbal harassment, the laws that provide the strongest protections for employees are the FEHA and Title VII of the Civil Rights Act of 1964.
What is Verbal Sexual Harassment?
Verbal sexual harassment is often seen in “quid pro quo” (Latin for “this for that”) scenarios. Typically, a sexual favor is requested or demanded in exchange for a specific job benefit, or simply just to keep one’s job. For instance, verbal sexual harassment occurs when an employer indicates they will give their employee a promotion or raise if they perform a sexual favor for them. Verbal sexual harassment of this kind may also be either express or implied.
Verbal sexual harassment also occurs when a favor is not being asked, but rather, the language used is so offensive as to constitute harassment. To be considered verbal sexual harassment these comments need to result in a hostile work environment due to the severity and/or pervasiveness of the comments.
Examples of Verbal Sexual Harassment
Examples of verbal sexual harassment can include (1) unwanted sexual advances, (2) comments on an employee’s body, (3) requests or threats for sexual favors, (4) inappropriate discussions of graphic sexual acts; (5) jokes, insults, or slurs that are sexual in nature; or (6) crude or vulgar sexual comments.
Examples of what is not Considered Verbal Sexual Harassment
It’s important to note that some verbal comments may be upsetting, embarrassing, and make you feel uncomfortable, yet not be considered verbal sexual harassment. While context is important, examples that are likely to not be considered verbal sexual harassment include (1) compliments on an outfit, (2) invitation to go out for dinner or coffee, or (3) other types of friendly non-sexual compliments.
That being said, if the innocent compliment or request is repeated it may rise to the level of verbal sexual harassment. For instance, one offer to a co-worker to go out on a date would not be considered sexual harassment. However, repeated requests after the co-worker informed them they were not interested may rise to the level of sexual harassment. The same may be true of compliments if an employee indicates that the comments make them feel uncomfortable and they continue.
What Could Be Non-Verbal Sexual Harassment?
In contrast with verbal sexual harassment, non-verbal sexual harassment is usually easier to determine. For instance, unwanted physical touching is clearly a form of sexual harassment. That doesn’t mean that every instance in which an employee is touched is sexual harassment. A friendly touch on the arm or back is likely not to rise to the level of sexual harassment even if an employee believes it was sexual in nature. That being said, if you request the touching to stop, and it continues, an employer’s touching may be considered a form of sexual harassment. Even then, a court may not consider the touching sexual harassment, even if the touching is inappropriate or offensive. Other factors will be considered, such as the severity and frequency of the touches.
Conclusion
The area of verbal harassment can be very subjective and it’s not always clear if one has become the victim of verbal harassment. Or it may be that you have suffered verbal harassment, but you are not sure if you can take any legal action. As with most employment law issues, it is highly recommended that you seek the opinion of an experienced California labor and employment law attorney. They will be able to assist in evaluating your claim and determining your best course of action.