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Does verbal harassment count as sexual harassment?

Sexual harassment is unwelcome sexual conduct in the workplace, whether it is physical or verbal. Verbal harassment that is offensive, hostile or intimidating can be a common form of sexual harassment. It can affect an employee just as seriously as physical harassment.

There are many forms of verbal harassment that can be considered sexual harassment. Some examples are offensive jokes of a sexual nature, unwanted sexual advances, excessive and unwelcome flirting, requests for sexual favors, suggestive or obscene emails and derogatory comments in a sexual context.

An isolated verbal incident may not necessarily fall under sexual harassment at the workplace. However, such conduct may become abusive if it is so severe and repetitive that it impacts an employee’s ability to perform their duties. On the other hand, some singular incidents may be serious enough to constitute sexual harassment, such as an employer demanding sex in exchange for letting an employee keep their job.

There are two categories of sexual harassment: quid pro quo and hostile environment. In quid pro quo harassment cases an employer expresses or implies that an employee’s job is dependent on their submission to unwanted sexual advances.

Hostile environment harassment generally takes place when an employee’s work environment is made hostile by sexual misconduct. The misconduct does not need to be directly targeted at a specific individual, for example through derogatory language in the workplace, demeaning sex-based terms or degrading pictures. However, it must be targeted to one gender or the other, and not both. The misconduct must also be based on gender and unwelcome such that a “reasonable person” of that gender would consider the conduct severe or pervasive.

Regardless of whether the harassment is severe or pervasive or not, employers can never terminate an employee in retaliation for complaining about any perceived sexual harassment.

McCormack & Erlich is a San Francisco law firm serving all of Northern California and specializing in the field of employment law. We have extensive expertise in helping people who have experienced sexual harassment in the workplace.

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