Can Workplace Sexual Harassment Occur Without Physical Contact?

An offensive comment. A recurring, rude joke. An unwanted text message. None of these involve physical contact, yet each one could contribute to a sexual harassment claim under federal and state law.

Many employees assume that sexual harassment requires touching or some other physical act. Unfortunately, that assumption can stop far too many workers from reporting conduct that violates their legal rights, as harassment does not have to be physical to be illegal. Nonphysical sexual harassment may include the following:

• Sexually explicit jokes, comments, or questions
• Repeated requests for dates or other favors after a clear refusal
• Sexually suggestive emails or text messages
• Displaying offensive images or objects in the workplace
• Gestures or staring intended to intimidate or demean

At Olivier & Schreiber PC, we represent employees throughout California and the nation who have experienced workplace harassment in all its forms. Nonphysical sexual harassment can be more likely to go unreported simply because many do not realize it qualifies as illegal, but speaking with an employment law attorney can help you understand whether your situation needs to be addressed with legal action.

What Types of Verbal or Nonphysical Conduct Can Constitute Sexual Harassment?

According to the Equal Employment Opportunity Commission (EEOC), sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other conduct of a sexual nature affecting employment or work performance. This definition extends well beyond physical acts. Offensive remarks about a person’s sex, sexually charged commentary about someone’s appearance, persistent staring or gawking, and circulating explicit images at work can all fall within this category.

When Can Comments, Jokes, Messages, or Gestures Create a Hostile Work Environment?

The EEOC notes that harassment becomes unlawful when it is severe or pervasive enough to create a work environment that a reasonable individual would consider hostile, intimidating, or abusive. A single off-putting joke may not meet that threshold on its own. A pattern of repeated comments, persistent messaging after a coworker has asked it to stop, or gestures made regularly in meetings can rise to the level of a hostile work environment far more quickly. Frequency, severity, and the power dynamic between the parties can all factor into this analysis.

Does Sexual Harassment Have to Be Directed at You Personally?

No. Federal guidance makes clear that the victim does not have to be the person who is being directly targeted by the offensive conduct. An employee who overhears sexually explicit jokes about a coworker, or who works in an environment where offensive images are displayed openly, may have a valid claim even if the comments were never aimed at them.

What Can Employees Do if They Experience Nonphysical Sexual Harassment at Work?

Employees who experience this type of conduct have several options:

• Tell the harasser directly that the behavior is unwelcome and must stop, when it is safe to do so.
• Report the conduct to a supervisor, human resources representative, or other designated point of contact as early as possible.
• Keep records of the incidents, including dates, witnesses, and copies of any messages or emails.
• Reach out to an experienced employment law attorney to discuss the specific facts of your situation.
• File a charge with the EEOC, when appropriate.

Though it may be difficult or uncomfortable to save, documentation often makes the difference in these cases. Screenshots, saved emails, and a written timeline of events can give an attorney the material needed to build a strong claim.

Find Your Next Right Step With an Employment Law Attorney

Nonphysical sexual harassment is still harassment, and it should be taken seriously by employers, coworkers, and the legal system alike. If a colleague’s comments, messages, or jokes have made a workplace feel hostile, employees do not need to wait for something physical to happen before speaking up.

Olivier & Schreiber PC has spent years fighting for employees who have faced difficult situations like this in the workplace. If you are wondering whether the conduct in your workplace needs to be addressed, contact our office today for a consultation and find out what legal options may be available.