What “counts” as sexual harassment?

As an employment attorney and frequent litigator of sexual harassment cases, I often am asked by potential clients, “I feel like I was sexually harassed. But is this sexual harassment? What “counts” as sexual harassment?

Understandably, I think most people are unaware of what “counts” as sexual harassment in the workplace. For example, in 2017, Slate published an article by Christina Cauterucci discussing the “grey area” of sexual harassment, and what it means to different people. When I first read the article, I was actually shocked by what people said was either “in the grey area but ultimately okay” or “in the grey area but ultimately not okay”. I felt that many of the “grey area” situations described were firmly in the “not okay” category and could easily be considered sexual harassment. But many folks just wouldn’t know what is “okay” and what is “not okay” under the law, in the workplace.

Below, I list several types of sexual harassment that Washington and other courts have identified as evidence of sexual harassment or gender discrimination in the workplace.

So what is sexual harassment generally?

Although not binding on Washington State courts, I find this UN list helpful and sometimes give it to my clients who are unsure of what constitutes sexual harassment to give them a better idea about what could be found to be evidence of sexual harassment. If you are concerned about sexual harassment at work right now, to start, simply take a look at this list and see if any of these things are happening to you. If they are, you should contact a sexual harassment attorney to discuss your options. 

As far as the law goes, below are some examples of what Washington and other courts have decided count as “sexual harassment” or have been found to contribute to a “hostile work environment” based on sex:

  • Gender insults or gender-specific names such as “bitch” “slut” “hoe”, “cunt”, “girl”, “doll”, “dear”, or “sweetheart”;
  • Romantic or sexual advances, requests for dates, or requests for sex;
  • Love Letters, Emails, “Love Notes”, or gifts;
  • Threats of or instances of rape;
  • Discussing, fantasizing, or inquiring about one’s romantic life or sex life;
  • Showing or sharing sexually explicit media such as photos, videos, graffiti, or cartoons;
  • Comments about clothing;
  • Comments about one’s body, body parts, or physical appearance;
  • Comments about pregnancy;
  • Inappropriate touching, grabbing, groping, or massaging;
  • Sexual comments about others or directed at others; and
  • Staring, “ogling”, leering, or “Elevator Eyes”;

Below is a deeper discussion of the cases and examples where plaintiffs (the ones bringing the sexual harassment case) were successful, to a varying degree, in using particular behavior as evidence of sexual harassment. 

Cases & examples of what has been found to be evidence of sexual harassment.

The following examples, sometimes along with other evidence, were presented to certain courts and determined to be evidence of sexual harassment. 

A. Gender insults or epithets like “bitch” or “cunt”

Courts have held that the use of epithets directed at gender, such as “slut” “bitch” “hoe” and “cunt” or “whore” that are used in the workplace can be used as evidence to demonstrate a hostile work environment based on sex. The courts find these insults or “swear words” different because they have a connotation of animus towards women. 

In Hacienda Hotel, sexual harassment was found where, in part, a female supervisor called her female employees “dog[s]” and “whore[s].” EEOC v. Hacienda Hotel, 881 F.2d 1504,1508 (9th Cir. 1989).

In Zabkowicz, the court found that an employee was harassed because she was a female on the basis that “the sexually offensive conduct and language used would have been almost irrelevant and would have failed entirely in its crude purpose had the plaintiff been a man.”Zabkowicz v. West Bend Co., 589 F. Supp. 780, 784 (E.D. Wis. 1984). In the case, the employee was referred to as “slut,” “bitch,” and “fucking cunt,” among other statements and acts. Id. Clearly, these words carry with them a specific derogatory definition that is specifically directed at women. 

In another case that was affirmed by the U.S. Supreme Court, a court found that the phrase “get rid of that bitch” uttered by a supervisor to be one piece of evidence among many, to be derogatory and hostile towards women and evidence of gender discrimination. Costa v. Desert Palace, Inc., 299 F.3d 838 (9th Cir. 2002).

In Steiner, the harasser referred to women as “dumb fucking broads” and “fucking cunts”. Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994).

In addition, other less obvious nicknames or phrases such as “girl” (instead of woman), “honey”, “doll”, or “dear” can constitute evidence of sexual harassment. 

For example, in Rene, the harassers’ conduct included whistling and blowing kisses at Rene, calling him “sweetheart” and “muñeca” (Spanish for “doll”). Rene, 305 F.3d at 1064-65. 

In Anderson, instead of referring to the victim by name, the harasser regularly called her “dear,” “gorgeous,” “the good little girl,” and “sexy.” The court found that this was evidence of sexual harassment and reversed dismissal on summary judgment. Anderson v. Reno, 190 F.3d 930, 933 (9th Cir. 1999).

If these or similar terms are regularly used in your workplace to refer to women (or anyone), I would probably consider this to be evidence of a hostile work environment based on sex/gender. 

B. Romantic or sexual advances, requests for dates, or requests for sex

If a woman is subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, it can often be properly described as sexual harassment. See example – Ellison v. Brady, 924 F.2d 872, 875 (9th Cir. 1991).

Requests for dates can also be used to demonstrate sexual harassment. See Miller v. ZEE’S, INC., 31 F. Supp. 2d 792,801 (D. Or. 1998) (where the court found sufficient evidence of sexual harassment where the plaintiff was subjected to sexual jokes, the harasser openly discussed his sex life, and the Plaintiff suffered unwanted touching, unwanted kissing, requests for sex, and requests for dates).

In Hacienda Hotel (discussed above) in addition to using gender-based epithets, the court found a hostile working environment where the hotel’s male chief of engineering frequently made sexual advances to the maids. EEOC v. Hacienda Hotel, 881 F.2d 1504, 1507 (9th Cir. 1989).

In Perry v. Costco, the harasser made inappropriate comments, including propositioning the victim for sex while grabbing himself, asking her if she wanted a mixed-race baby with him, asking her to make pornography, and describing sexual acts he wanted to do to her. Perry v. Costco Wholesale, Inc., 98 P.3d 1264, 1273 123 Wash. App. 783 (Div. I, 2004).

In short, propositions for sex, sexual advances, requests for sex, or requests for dates can all be used as evidence of sexual harassment. If you experience any of these, be sure to document or preserve this evidence as best you can.

C. Love Letters, Emails, “Love Notes”, or Gifts

Gifts, love letters, emails, text messages or notes can all be evidence of sexual harassment.

Repeated “love notes” have been held to be evidence of sexual harassment. See example – EEOC v. Prospect Airport Services, Inc., 621 F.3d 991 (9th Cir. 2010); see also Ellison, 924 F.2d at 878, 880-81 (unwelcome and creepy love letters and date requests from co-worker sufficiently hostile).

In Yamaguchi, the harasser sent theplaintiff unwanted notes, gifts, and e-mail messages. Although she repeatedly asked him to stop, the harasser continued to give her inappropriate gifts and cards and stare at her during work. Yamaguchi v. US Dept. of the Air Force, 109 F.3d 1475, 1478 (9th Cir. 1997).

In Rene, the harassers gave him “joke” gifts and harassed him for behavior that did not conform to commonly accepted male stereotypes. Rene, 305 F.3d at 1064-65.

Therefore, make sure to keep track of and preserve any notes, emails, “love letters” or gifts. These can be great evidence of unwanted or inappropriate attention that can definitely be considered sexual harassment.

D. Threats of or instances of rape

Rape is extremely serious and can certainly be used as evidence of sexual harassment.

“The most extreme form of offensive physical, sexual conduct — rape — clearly violates [federal discrimination law].” Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1066 (9th Cir. 2002). See also Little v. Windermere Relocation, 265 F.3d at 912 (“Rape is unquestionably among the most severe forms of sexual harassment. … Being raped is, at minimum, an act of discrimination based on sex.”); Brock v. United States, 64 F.3d 1421, 1423 (9th Cir.1995) (“Just as every murder is also a battery, every rape committed in the employment setting is also discrimination based on the employee’s sex.”).

Even the threat or discussion of rape can be evidence of sexual harassment. In Oncale, the plaintiff was threatened with rape by a crane operator with supervisory authority. When asked at his deposition why he left his employer, Oncale stated: “I felt that if I didn’t leave my job, that I would be raped or forced to have sex.” Id., at 71.

As noted in Ellison v. Brady:

Because women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser’s conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.

The law treats the use of even discussion of rape to be serious, and certainly, rape would be found to be strong evidence of sexual harassment in the workplace.

In Yamaguchi, the harasser sent the plaintiff unwanted notes, gifts, and e-mail messages. Although she repeatedly asked him to stop, the harasser continued to give her inappropriate gifts and cards and stare at her during work. Yamaguchi v. US Dept. of the Air Force, 109 F.3d 1475, 1478 (9th Cir. 1997).

In Rene, the harassers gave him “joke” gifts and harassed him for behavior that did not conform to commonly accepted male stereotypes. Rene, 305 F.3d at 1064-65.

Therefore, make sure to keep track of and preserve any notes, emails, “love letters” or gifts. These can be great evidence of unwanted or inappropriate attention that can definitely be considered sexual harassment.

E. Discussing, fantasizing, or inquiring about one’s sex life or romantic life

Discussion, fantasizing, or questions about one’s romantic or sex life can be evidence of sexual harassment.

In Miller, the court found that the plaintiff was the victim of sexual harassment when, among other things, the harasser routinely discussed his sex life. See Miller v. ZEE’S, INC., 31 F. Supp. 2d 792,800 (D. Or. 1998)

Similarly, in Draper, the harasser discussed “that his sex life with his wife was not very good and that he wished he had met Draper before he had married.” Draper v. Coeur Rochester, Inc., 147 F.3d 1104 (9th Cir. 1998). In addition, “[h]e also told [the victim] about his sexual fantasies, including his desire to have sex with both [the employee] and his wife.” Id.

In Maturo, the harasser asked the plaintiff “about her sex life and whether there was anything he could do to help her, indicating his interest in having sex with her.” Maturo v. National Graphics, Inc., 722 F. Supp. 916, 920 (D. Conn. 1989).

Even implicitly referencing one’s sex life can be found to be sexual harassment. For example, one court found that a reasonable jury could find sexual harassment where a harasser was “implicitly referencing her sex life when he told her not to forget to scream his name.” Ellorin v. Applied Finishing, Inc., 996 F. Supp. 2d 1070, 1082 (W.D. Wash. 2014).

In Sangster, the court found the harasser’s comments, words alone, were motivated by the employee’s gender and constituted sufficient evidence of sexual harassment. The harasser asked the victim, “[w]hat’s the matter — didn’t you get any last night?” or remarking that she should join his mile-high club, could have been made to either male or female, but “were inappropriate comments about her sex life.” Sangster v. Albertson’s, Inc., 991 P.2d 674, 678 1017 (Div. III,. 2000).

In Wahl, The harasser’s comments included Dr. Moore’s wife’s preferences during sex, references to oral sex, graphic details about Dr. Moore’s sex life, the size of his penis, and comments about the bodies of female patients and employees. Wahl v. Dash Point Family Dental Clinic, Inc., 181 P.3d 864, 866 (Div. II, 2008). Some of these comments were about Wahl’s breasts and about Dr. Moore’s physical attraction to Wahl’s mother, who was a patient at the clinic. Id. The court found that these comments were properly characterized as sexual harassment.

In short, discussion about or questions about one’s romantic or sex life can certainly be used as evidence to support a case for sexual harassment.

F. Showing or sharing sexually explicit media such as photos, videos, graffiti, or cartoons

Sending or showing sexually explicit videos or photos to others is evidence of sexual harassment. See Fleetwood v. Washington State University, No. 2: 20-CV-00355-SAB (E.D. Wash. July 9, 2021) ( that a person sent sexual videos and photos to non-consenting recipients “fits squarely into the examples of unwelcome sexual conduct sufficient to create a hostile environment…”) See also Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990) (posting of pornography in common areas and personal workspaces of women employees establishes prima facie case of hostile work environment).

Sexually explicit drawings or cartoons are also often found to be evidence of sexual harassment. See Arizona v. Asarco LLC, 773 F.3d 1050 (9th Cir. 2014) (affirming the trial court’s decision to admit sexually explicit graffiti directed at employees).

In Anderson, the plaintiff was given a cartoon depicting varieties of female breasts with her initials scrawled next to an example labeled “cranberries,” a copy of an article concluding that women who read “racy” books have more sex, accompanied with a note that read, “KMA—read any good books lately?” and a greeting card that said, “Some of us at the office were wondering … when you were planning to come into the office naked.”

In short, showing, sharing, or sending sexually explicit images, videos, graffiti, or cartoons can be used as evidence of sexual harassment in the workplace.

G. Comments about Clothing

Comments made about a person’s clothing can also contribute to a hostile work environment.

Recently, in Rogers v. Harker, the harasser made comments about the victim’s clothing and appearance. Rogers v. Harker, No. 19cv2391 JM (AHG) (S.D. Cal. May 25, 2021). The court found that “[c]ertainly, a supervisor encouraging an employee to wear make-up” and “suggesting that she wear revealing clothing” among other things was considered to be “well within the range of behaviors potentially constituting unlawful sexual harassment.” Id.

In Craig v. M & O Agencies, Inc., the court found a hostile work environment existed where an employee’s supervisor made repeated inappropriate comments about her body, clothing, and appearance. Craig v. M & O Agencies Inc., 496 F.3d 1047 (9th Cir. 2007).

And in Sanaster, it was found to be evidence of sexual harassment where the harasser commented on clothing and suggested that the victim wear tighter shorts. Sangster v. Albertson’s, Inc., 991 P.2d 674, 678 1017 (Div. III, 2000).

Comments about a person’s clothing can definitely be used to show sexual harassment in the workplace.

H. Comments about one’s body, body parts, or physical appearance

In addition to comments about clothing, comments about a woman’s body, body parts, or physical appearance can be evidence of sexual harassment.

In Dias, the harasser “engaged in ongoing sexual harassment of women employees” that included “comments on the breasts, buttocks, and physical appearance of individual women.” Dias v. Sky Chefs, Inc., 919 F.2d 1370, 1373 (9th Cir. 1990).

In Little v. Baker, the court found sufficient evidence of sexual harassment. In Little, the owner/supervisor referred to hugs from the plaintiff as “`booby hugs,'” which places emphasis on her breasts. He called her sexy and told her she looked “`hot,'” which refers to her female body. He called lunch dates with her and his other employees as “`nooners,'” a term with sexual innuendo. He also referred to her and another female employee as “`his bitches'” which in context references their female gender. Little v. Baker, No. 29206-1-III (Wash. Ct. App. Oct. 25, 2011).

In Pacific Fun Enterprises LLC, a plaintiff sufficiently alleged that the owner of the company subjected Ms. Root to regular and repeated sexual harassment when he called her a “slut” and “whore”, ripped her bikini top in front of patrons, told the plaintiff that he had dreams about having sex with her, told her about sex acts with others, and made lewd and degrading comments of a sexual nature about other female employees’ breasts and buttocks. EEOC v. Pacific Fun Enterprises LLC, Civ. No. 17-00482-ACK-RT (D. Haw. Jan. 7, 2020). The harassment was not confined to the plaintiff, for the complaint further alleged that the defendant told a female employee that he fantasized about having sex with her, tried to kiss the employee, and required female employees to wear cut-up shirts and shorter shorts to reveal more “skin.”  The Complaint also alleged that other management officials and patrons subjected female employees to similar harassment including making frequent sexual comments; unwanted touching of female employees’ arms, breasts, and buttocks; and leering and brushing against women’s bodies. Id.

In Yamaguchi, the harasser made sexual gestures and remarks about the plaintiff’s body, perfume, and clothing and about other women in the workplace (e.g., “Cheryl has a nice ass.”). The harasser also made sexually explicit comments about his own wife (e.g., my wife’s nipples are perfect.”) Yamaguchi v. US Dept. of the Air Force, 109 F.3d 1475, 1478 (9th Cir. 1997).

Again, comments about women’s bodies, appearance, or specific body parts, especially their most private areas, can certainly be used as evidence of sexual harassment.

I. Comments about pregnancy

Inappropriate comments about pregnancy can also be evidence of sexual harassment.

In Hacienda Hotel, the plaintiff was pregnant. During her pregnancy, the plaintiff’s harasser made numerous crude and disparaging remarks regarding her pregnancy. For example, when the harasser found out she was pregnant, he told her, “That’s what you get for sleeping without your underwear.” EEOC v. Hacienda Hotel, 881 F.2d 1504, 1507 (9th Cir. 1989).

In Dominguez-Curry, a harasser made comments like “Every woman that comes to work in our division gets pregnant…I hope you don’t get pregnant.” Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1031-32 (9th Cir. 2005). In reference to one woman who announced she was pregnant shortly after she began working in the division, the harasser commented, “the bitch knew she was pregnant when I hired her.” The harasser told the plaintiff that he “did not want to deal with another pregnant woman.” After this woman returned from maternity leave, the harasser told her she “should try and transfer to another position where being a mommy works for her.” The harasser also stated. “I want her out” and said, “he was going to make her travel so that she would leave.”

Based on these cases, it is possible to use unwanted or inappropriate comments about pregnancy to demonstrate sexual harassment.

J. Inappropriate touching, grabbing, groping, or massaging

Several different types of physical grabbing, touching, groping, or massaging can be found to be sexual harassment and are also sometimes stronger than words or comments alone.

In Glasgow, the harasser “approached [the victim], staring at her breasts. He then placed his hand on her right breast without any welcome or invitation”. He “molested” this plaintiff another time “by approaching her from behind and grabbing her buttocks with his hands”. Glasgow v. Georgia-Pacific, 103 Wash. 2d 401, 402 (1985).

In Rene, the harassers grabbed the victim “in the crotch and poked their fingers in his anus through his clothing.” Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1064 (9th Cir. 2002).

In Allen v. Global Advisory Group, the defendant acknowledged that the harasser gave the victim several neck and shoulder massages and slapped her buttocks. Allen v. Global Advisory Group, INC., No. 62338-9-I (Wash. Ct. App. May 26, 2009).

Clearly, evidence of physical touching, especially in the victim’s most private areas, can be evidence of sexual harassment.

K. Sexual comments about others or directed at others

If “hostility pervades a workplace, a plaintiff may establish a violation [], even if such hostility was not directly targeted at the plaintiff.” McGinest v. GTE Service Corp., 360 F.3d 1103 (9th Cir. 2004)

Even comments or evidence of harassment not made directly towards the person or not made in her presence can be relevant to a sexual harassment claim. “Offensive comments do not all need to be made directly to an employee for a work environment to be considered hostile.” Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir.2008) see also Woods v. Graphic Commc’ns, 925 F.2d 1195, 1202 (9th Cir.1991) (plaintiff subjected to “several racial remarks and hostility” in the workplace). “An employee’s second-hand knowledge of a derogatory comment or joke can impact the work environment.” Coles v. Kam-way Transportation, No. 75471-8-I (Wash. Ct. App. Sept. 11, 2017) (the court found the harasser’s derogatory comments that were made outside of Plaintiff’s presence relevant).

In Asarco, the employer argued that evidence of sexually explicit graffiti targeted at other employees (not the plaintiff) was too factually dissimilar and temporally remote from Aguilar’s experience and that, as a result, the evidence of similar pornographic graffiti directed at other employees should not be admitted. Arizona v. Asarco LLC, 773 F.3d 1050 (9th Cir. 2014).
The court disagreed and stated that any prejudice to the employer was limited by the circumscribed nature of the evidence and the limiting instruction given by the district court. The court found that the evidence had probative value in helping the jury assess whether Aguilar had proved the elements of harassment and the court additionally decided that the evidence formed only a small part of the evidence presented.
In short, the similar treatment of others in the workplace can help bolster that the work environment is hostile based on sex, especially if other women are being treated in the same or a similar fashion.

L. Staring, Ogling, Leering, or “Elevator Eyes”

Staring, leering, “ogling”, or “elevator eyes” (looking someone up and down) can be evidence of sexual harassment.

In Sanchez, the court concluded that the plaintiff had presented enough evidence when she stated that, among other things, the harasser “would look her up and down and fasten his eyes on either her crotch or breasts.” Sanchez v. California, 90 F. Supp. 3d 1036, 1059 (E.D. Cal. 2015).

In Perry v. Costco, “[o]n at least four occasions… [the harasser] showed up at Ms. Perry’s workplace, made a point of being seen by her, and then stared at her menacingly.” Perry v. Costco Wholesale, Inc., 98 P.3d 1264, 1273 123 Wash. App. 783 (Div. I, 2004). The court found that “although [] four instances of staring, considered in isolation, are not sexual harassment,” following other comments or acts, it could nonetheless contribute to a hostile work environment.

In Teague, the plaintiff alleged that her harasser, among other things, stared at her for hours and, on one occasion, followed her into the ladies’ room where she was changing clothes. The court found these facts relevant in concluding that she had made a case of sexual harassment. Teague Motor v. Federated Service Ins., 869 P.2d 1130, 73 Wn. App. 479 (Div. III, 1994).

Although it is likely difficult to base a sexual harassment claim on “dirty looks” alone, combined with other facts, evidence of staring, especially at women’s bodies or private areas, can be evidence of sexual harassment.

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Unfortunately, the above are just examples and there are countless ways that a harasser can engage in sexual harassment and create a hostile work environment based on sex. If you are experiencing any of the above, or a combination of multiple of the above harassment at work that you believe is severe or pervasive, don’t be afraid to reach out to an experienced sexual harassment attorney who can help you document these problems, or if necessary, file a lawsuit on your behalf. Don’t wait until it is too late, or until you are fired, get help now! Do something to make your office a better place for you and for anyone else that might be in the same situation.

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Disclaimer

Every legal issue is very unique. Accordingly, the information in this blog is intended as general education material and not as legal advice. If you think you may have a legal issue, you should consult an attorney.