‘Just Kidding’ is Not a Defense to Sexual Harassment in the Workplace

For about as long as workers have endured sexual harassment on the job, others have tried to rationalize that harassment away. Not every actionable instance of sexual harassment is as obvious or clear-cut as a 1990s Michael Douglas-Demi Moore motion picture. People may try to trivialize your victimization as mere “jokes.” They may try to dismiss it as not valid because the harasser wasn’t trying to get sexual favors from you. Don’t listen to them. Instead, get the knowledgeable advice you need from a skilled New York City sexual harassment lawyer.

Two of the more common excuses used to try to sweep away sexual harassment is that either (a) it wasn’t harassment because the harasser’s inappropriate comments were just ordinary workplace jokes or teasing, or (b) it wasn’t sexual given the genders and the sexual orientations of the harasser and the victim.

These excuses don’t fly according to the law, as a recent federal court ruling in a hostile work environment case again reminds us.

The victim, C.D., worked at a Newburgh auto dealership. One day in May 2017, the harasser approached her, made sexual comments about her breasts, then grabbed one of the woman’s breasts. The harasser’s comments on C.D.’s breasts range from “they’re too big for you” to “they can’t be real” to “why do they bounce when you walk?”

When a supervisor later approached the harasser about the incident, she expressed surprise that the victim complained, asserting that the two were friends and that she was “just joking.”

C.D. apparently didn’t think it was a joke. She went to the Newburgh police and filed a complaint there, which led to the issuance of a restraining order requiring the harasser to stay at least 500 feet away from her at all times.

C.D. later sued the employer, alleging a hostile work environment.

To establish a hostile work environment, you have to show that the harassment was either severe or pervasive. The May 2017 incident alone was enough to qualify as “severe” and clear this hurdle.

The defense tried to argue that the harasser’s grabbing of C.D.’s breast was just part of a mere joke and therefore couldn’t qualify as severe or pervasive harassment. The court, however, pointed out two very important points on this topic. One, well-established federal law says that a single incident of sexual harassment can make for a hostile work environment if it is “extraordinarily severe” and, two, direct physical contact with a person’s intimate body parts is “one of the most severe forms of sexual harassment.”

The defense also tried to argue that this incident couldn’t amount to illegal sexual harassment because the harasser was not “motivated by sexual desire,” so the harassment was not “because of sex.” This argument, like the one before it, also failed.

Motivated by Gender, Not Necessarily Motivated by Sexual Desire

In C.D.’s case, the woman who harassed her was not trying to “make a pass at” or “come on to” her. However, under sexual harassment law, that doesn’t matter. As the judge explained, “harassing conduct need not be motivated by sexual desire, however, so long as it was motivated by gender.” Clearly, a woman having her breast groped is harassment “motivated by gender.”

The facts of this case — a woman sexually harassing another woman in a very overtly physical way — are relatively less common although, as this case shows, it does happen. If it happens to you, do not let anyone convince you it is not actionable. As this case shows, it may well be the basis of a successful lawsuit.

Male-on-male sexual harassment takes place with greater frequency. Back in 1998, the U.S. Supreme Court declared that this, too, can be a valid form of illegal sexual harassment.

Some men think that it is an acceptable form of workplace teasing to engage in unwanted touching of male co-workers, including grabbing, squeezing, smacking, or punching another man’s intimate body areas. Others may think it is acceptable to speculate on a male co-worker’s sexuality or to use homosexual slurs or insults as a way to demean another male worker. Even if both the harasser and the victim are heterosexual men and there is no sexual desire at issue, these actions are highly inappropriate and very possibly constitute actionable sexual harassment.

Workplace sexual harassment is never OK, regardless of your gender and sexual orientation, and the gender and sexual orientation of your harasser. Sexual desire is not a required element of a successful hostile work environment case. So, if it’s happened to you, don’t be discouraged, and don’t wait to take action. Reach out to the thoughtful, attentive, and aggressive New York sexual harassment attorneys at Phillips & Associates. Contact us online or at (866) 229-9441 today to set up a free and confidential consultation and find out what options the legal system has for you.

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