Question:

I work in a small area containing 8 workstations. One of my co-workers has the speakers turned up on his computer, and he opens e-mails with audio “jokes” that I find offensive. Most of them are degrading to women or contain sexual innuendo. My co-workers and I have discussed this with him, and we asked him to turn his speakers down, but he just laughed. What can we do?

Answer:

Your co-worker’s conduct may constitute sexual harassment, and you have the legal right to inform your employer that you are offended by these audio “jokes.” Your employer will then have a legal duty to investigate your concerns, and determine if sexual harassment has occurred.

California law defines harassment because of sex as including sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexual harassment includes unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. These definitions include many forms of offensive behavior, and include gender-based harassment of a person of the same sex as the harasser. Violations may include:

  • Unwanted sexual advances;
  • Making or threatening reprisals after a negative response to sexual advances;
  • Visual conduct: leering, making sexual gestures, displaying of sexually suggestive objects or pictures, cartoons or posters;
  • Verbal conduct: making or using derogatory comments, epithets, slurs and jokes. Verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, sexually degrading words used to describe an individual;
  • Physical conduct: touching, assault, impeding or blocking movements;
  • Offering employment benefits in exchange for sexual favors;
  • Making or threatening retaliatory action after receiving a negative response to sexual advances.

Harassing conduct must be offensive in order to be actionable. In California, the conduct must be subjectively and objectively offensive. This means that you have to be offended by it and a reasonable person would also be offended by the conduct. Depending on the explicitness of the content of the audio “jokes,” the conduct may be objectively offensive. It is subjectively offensive because you and your co-workers are offended by it.

The conduct must also be severe and pervasive. If this is one isolated incident, the employer and the “harasser” may not be liable, but you should still make a complaint so this offensive conduct can be addressed. If the conduct has been going on for some time, and is objectively offensive, it may constitute sexual harassment.

Although your work complaint is somewhat unusual because the conduct is not directed at you, it can still constitute a hostile work environment. Recently, the U.S. Equal Employment Opportunity Commission recognized that subjecting a worker to offensive music might constitute a hostile work environment. The EEOC filed a racial harassment lawsuit against Novellus Systems, Inc. alleging that the company fired a technician for complaining about offensive rap music lyrics. The plaintiff alleged that he complained to his supervisors about having to listen to a co-worker playing and loudly singing along to songs that included racially offensive lyrics. In that case, the EEOC stated, “the EEOC is not in the business of judging anyone’s musical tastes, but we are concerned when we find that an employer failed to respond promptly after being put on notice of racially offensive language or conduct in the workplace.”

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