Understanding What “Unwelcome” Sexual Conduct at Work Really Is

In the law, and the way that the law is written, words matter–even small ones. So, the difference between federal law, which makes harassment based on sex illegal, and California’s law, which makes any kind of “unwelcome” sexual conduct, illegal is a big difference.

It practically means that the law in California provides workers with far more and broader protections than the federal law does. But that doesn’t help define what “unwelcome sexual conduct (as opposed to “harassment” as used in federal law), actually is.

What Does Unwelcome Mean?

The word “unwelcome” means what you would expect it to mean; it is any conduct, sexual in nature, that you didn’t consent to, want, or invite.

That means  you don’t have to actively have said no, and you don’t have to declare to anybody what conduct you are OK and not OK with–if it’s sexual conduct you didn’t ask for, it is, in the eyes of the law, potentially unwelcome.

This helps workers who are often barraged with comments that they didn’t solicit, ask for or want–comments often disguised as “compliments.”

Imagine a co-worker commenting on how nice that dress fits today, or how great you would look in a swimsuit, or how much they would enjoy helping you “unwind” after work. These comments are sexual in nature, and not solicited, and are thus unwelcome.

Objective and Subjective Tests

Of course, when arguing over whether something is welcome or unwelcome, there often will be two sides to the story; the harasser or your employer, will often say that the allegedly unwelcome sexual words or conduct were, in fact, welcomed by you.

To see what is truly unwelcome, the law looks both at whether you personally were offended, or felt harassed or uncomfortable, and also, whether or not a reasonable person in your position subjected to what you were subjected to, would feel that the conduct was unwelcome.

Do You Have to Walk Away?

Often, harassers will say that you didn’t leave the harassing situation–that is, that you perhaps laughed along with them, or you sat there listening to what they were saying, knowing it was harassing you, and thus the behavior had to have been welcomed by you.

But the Supreme Court has said that is not the case; simply “not withdrawing yourself” from the situation, is not the same thing as the behavior or comments being welcomed.

Comments About Gender

Remember that unwelcome sexual conduct, doesn’t just mean comments or actions of a sexual nature; it also means comments directed at a sex or gender which might be degrading or insulting.

So, someone who says “these women always do X, Y and Z,” may not have said anything sexual–but it’s still demeaning and harassing to the female gender, and thus, constitutes unwelcome sexual conduct.

Intent Doesn’t Matter

And no, it doesn’t matter what the speaker or harasser’s intent was–saying it was “just a joke,” or the fact that the harasser and the harassed employee had a good working relationship is not a defense–it only matters that the behavior was unwelcome and directed at sex or gender.

Contact the San Jose employment attorneys at the Costanzo Law Firm today if you have been harassed for any reason at work.

Source:

oag.ca.gov/workplace-sexual-harassment