Hold your horses!

What do you think of when you hear the phrase “sexual harassment”?  Inappropriate touching?  A supervisor making inappropriate demands?  Lewd jokes?  The legal definition of “sexual harassment” says that it may include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that explicitly or implicitly affects an individual’s employment.  That’s a bit vague, isn’t it?

When considering whether certain conduct constitutes sexual harassment or not, courts often have to decide whether certain behavior is “of a sexual nature.”  Not everything that relates somehow to sex is harassment, and behavior that doesn’t seem to be sexual in nature may be harassment when you consider the totality of the circumstances.  In fact, the exact same behaviors may or may not be considered sexual harassment depending on all the other factors involved.

Courts consider “horseplay” to be different from harassment.  Horseplay is joking, teasing, bullying, and other such behavior that is not specifically motivated by sex.  For example, courts have found instances where one heterosexual male slaps a male coworker on the buttocks to be horseplay, but a heterosexual male doing the same thing to a female coworker could be harassment.  The difference is the presumption of whether the behavior is motivated by sex.

Along the same lines, certain actions that may not seem like harassment in isolation can be considered to be part of a pattern of harassment when you look at a situation as a whole.  For example, staring or leering at someone without comment may be incredibly rude but it is not inherently sexual.  However, let’s assume you have a situation where one coworker has made several sexual advances towards another.  The advances have been rejected and yet they continue, and they’ve become more aggressive and explicit.  In a case like that, the coworker who made the advances leering at the subject of affection could easily be added as another example of how the work environment has become hostile.

Determining whether behavior is motivated by sex is not a simple question.  Prior comments and interactions can easily change the tint of the lens through which an isolated incident is viewed.  Additionally, the courts consider the impact on the victim.  Even if a harasser had no actual sexual motivation, if a situation would cause a reasonable person in the victim’s position to believe that the behavior is motivated by sex that is enough to consider the behavior to be sexual in nature.  The best way to determine whether behavior is likely to be considered sexual harassment or mere horseplay is by asking an employment law attorney who is used to analyzing situations of potential sexual harassment and assessing whether a court would be more likely to find the behavior to be illegal or not.

If you believe you may have been the victim of sexual harassment, call Gold Star Law for help.