Sexual Harassment: When Does a Dirty Joke Cross the Line?


When does a dirty joke at the office become sexual harassment? If your boss compliments your clothing in a way that makes you uncomfortable, what can you do about it? When does a flirtatious conversation cross the line? – Recently, Gretchen Carlson of Fox News, made very public allegations surrounding her inappropriate treatment in the workplace by her superior, Roger Ailes. She alleged enduring years of quid pro quo sexual harassment, and ultimately, posited that her career at the network had been damaged because of her refusal to comply with Mr. Ailes repeated demands for sex. The case was settled out of court, for $20,000,000.00. During the period following news of her allegations, many other women at the network came forward to tell similar stories, serving to corroborate her story. Mr. Ailes himself was forced to resign, after what appeared to be rampant mistreatment of women under his supervision at Fox, became national news.

Ms. Carlson said that she endured these advances for decades, which is consistent with the statistics. Most career women, for whatever reason, do not report when they are sexually harassed, rather they opt to “handle it themselves” probably due to the fear of reprisals or a desire to prevent losing ground to the “boy’s club” that prevails in most company environments. When it eventually becomes something they can no longer manage, which it almost always does, it is at this point they often turn to a lawyer for resolution of their claims.

What are the red flags for sexual harassment?

Sexual harassment can be expressed in many ways. It can be a comment, a touch, or more commonly now, with the advent of a multitude of social media and digital communication options, a salacious text, inappropriate email or embarrassing social media postings. Women can be more easily photographed in ways that invade their privacy, and with so many media platforms available to their co-workers, the opportunity to utilize those photographs in ways that directly expose these women to sexual harassment has never been greater. We are often connected to our co-workers through Facebook, Twitter, Snapchat and/or other social networks, where photos can be made public in ways we would not have imagined even a decade ago.

When it comes to red flags, there are two major things to look for:

The first, is whether or not anyone in a supervisory capacity offers you more favorable treatment at work in exchange for any kind of sexual favor. It may be a promotion, a raise, or perhaps you’re just told good things will happen if you’re a “sexy” team player. The second is the reverse scenario. Any kind of a threat. It is made clear that an employee must comply with someone in power’s sex-related or invasive wishes, or they will bear the “consequences.” It is important to be aware that in many cases, if not most, these threats are implied. There may be times when it is clear that if you speak up about behavior that crosses the line, your complaints will not be well received. That abuse of power in the workplace is at the heart of why such behavior is unlawful. Because anyone subjected to it knows that to speak out may jeopardize her career. In the case of this kind of pressure, even a single instance of quid pro quo sexual harassment can be enough to support a lawsuit.

There are other, less direct methods of sexual harassment. They fall under the umbrella of “hostile work environment” and usually arise when an employee is consistently subjected to offensive and sexually suggestive material during the normal course of business. Perhaps a neighboring cubicle is occupied by someone who consistently watches pornographic materials knowing that other co-workers will see it. It may be two men exchanging salacious and intimidating, or abusive jokes within earshot of employees who are less than amused by their senses of humor.

This second category requires a bit more work on the part of the victim to lay out a case. He or she must report these actions to Human Resources, or other appropriate supervisory oversight body, in order that the employer be given a chance to correct the behavior. If the employer fails to respond, then it is likely time to contact an attorney.

How can I tell if an action crosses the line?

The line between innocent conduct and sexual harassment is not always clear. A good way to measure whether or not a court would find in your favor might be to really examine the situation as though you were outside it. Does it feel targeted? Is the behavior directed at you? If you walked away, would it continue without you in earshot?

It would be draconian for every joke, even off color ones, to be considered actionable. The point of the law is not to keep those around us from expressing themselves fully, even if that expression is occasionally off color. The laws are in place to keep such behavior from interfering with performing our jobs and to prevent pressure to provide intimacy from making it impossible to do so. We are also protected from enduring bullying of a sexual nature while at work. For an environment to be hostile, it must be pervasive and unwanted. Look for the following:

  •  Targeted: It occurs primarily in your presence, you are essentially forced to listen to it, without escape. It appears that these things are being said either to make you uncomfortable or to get your attention. The “sexy talk” is constant, so much so that you cannot escape it.
  • Nasty texts/sexting: A co-worker or supervisor is making unwanted sexual advances, comments of a sexual nature, etc., all via texts. If you’ve told them to stop, and they do not, you may have a claim for sexual harassment. Report the behavior and see an attorney.
  • Pornographic or other sexually graphic imagery: When these types of materials are repeatedly left where you will see them, or repeatedly placed where you will be unable to avoid seeing them.
  • The legal standard goes beyond that which you might find offensive on one or two occasions. A hostile work environment in the sexual harassment arena is created by a boss or coworker whose actions, communication or behavior make doing your job impossible. It cannot be confined to merely overhearing two guys engaging in sexually charged banter in the break room.

The Takeaway

Each of us has a different levels of sensitivity to various types of sexually charged conversation or imagery. That can be heightened at work, because that isn’t the environment in which we seek to be our most relaxed. It’s important to keep in mind, though, that the issues underlying sexual harassment, whether it is the direct form of quid pro quo, or the pervasive daily assault of a hostile workplace, made so by consistent inappropriate behavior of co-workers, the actionable form must be in some manner directed at you. Casual contact with the bad behavior of others is unlikely to rise to the level of actionable in a court of law.

If the behavior you are experiencing is having a serious impact on an your quality of life at work, and/or preventing you from successfully accomplishing your tasks, it is likely that you are experiencing something beyond casual contact of a sexual nature. Unwanted sexual tension at work can make a job unbearable, and at some point, the emotional toll can begin to impact your personal life. It is these factors that attorneys will look at in assessing your claims.

For further discussion of the legal definitions and parameters are for workplace Sexual harassment in California, and how to report and document your claims, please see our recent blog here.

Although we have made strides, too many people still cross the line. They either don’t respect the personal space of others, they don’t want to take “no” for an answer, or they incorrectly believes their behavior is acceptable, because they are “only kidding around.” No employee is required to endure repeatedly inappropriate sexual behavior. If you’re interested in speaking with a lawyer to get a free analysis of your case, reach out to the team at Lazear Mack bob calling the number below or filling out our contact form.

Lazear Mack, LLP
Employment Law Attorneys
436 14th Street, Suite 1117
Oakland, CA


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