Can an Offensive Joke Be Considered Sexual Harassment?
The Law Firm of J.W. Stafford | December 9, 2022
Making a joke at work can seem harmless, and, for some people, making jokes can be a way to try to inject some fun into an otherwise monotonous day on the job. But, while some jokes can be harmless, others can be offensive—and they can even cross the line to harassment. This is especially true when jokes are sexual in nature.
In some cases, offensive jokes can be considered sexual harassment. More often, however, evidence of a pattern of sexual jokes or other offensive behavior will be necessary to establish a hostile work environment. This is true not only in the private sector but in the federal system as well. From a legal perspective, these situations require assessment on a case-by-case basis and determining whether offensive jokes justify a sexual harassment claim requires an in-depth understanding of the relevant circumstances and the relevant law.
The Law On Sexual Harassment in the Workplace
Sexual harassment is considered a form of sex-based discrimination under Title VII of the Civil Rights Act of 1964. Under Title VII, there are two categories of sexual harassment: (i) quid pro quo sexual harassment; and (ii) hostile work environment.
Offensive jokes fall into the second category. Quid pro quo sexual harassment involves requiring employees to submit to sexually offensive conduct or contact (either explicitly or implicitly) in order to receive work-related benefits. In quid pro quo sexual harassment cases, offensive jokes are rarely (if ever) involved. Instead, offensive jokes are more likely to contribute to a hostile work environment—or a work environment in which one or more employees feel uncomfortable due to the actions of their coworkers.
When Offensive Jokes Cross the Line to Sexual Harassment
Can one sexually-explicit joke create a hostile work environment? Generally not, although a particularly targeted, demeaning, or discriminatory comment may be enough to justify a claim in some cases. More often, to establish a claim for sexual harassment, affected employees will need to have evidence of multiple jokes that, when taken together, create an offensive, uncomfortable or unwelcoming work environment.
However, these jokes do not all have to take the same form, and they do not all have to come from the same individual. For example, the following—whether made by one coworker or several—can all jointly contribute to creating a hostile work environment:
- Demeaning jokes about gender, gender identity, sex or sexual orientation
- Derogatory comments about individual employees
- Sexually infused comments about an employee’s appearance
- Sexually explicit jokes
- Jokes with sexual innuendo
- Pointing, laughing and other gestures
- Sending explicit images or videos as a joke
Importantly, for an employee to have a sexual harassment claim based on offensive jokes, the jokes do not have to target (or be made at the expense of) the affected individual. Jokes that are generally offensive, jokes that target coworkers, and jokes shared in emails or direct messages between other employees can all potentially justify a sexual harassment claim under Title VII.
Proving a Sexual Harassment Claim Based on Offensive Jokes
If you have dealt with offensive jokes in the workplace, determining whether you can successfully pursue a sexual harassment claim requires consideration of several factors. For example, some of the key considerations for evaluating your claim include:
- Were the jokes made orally or in writing? Jokes made orally can be more difficult to prove, although if you have coworkers who also heard or witnessed the jokes, this can help. If the jokes were made in writing (i.e., in emails, text messages or direct messages), this can provide incontrovertible evidence that the jokes were made, and it can help with proving the timing and consistency of the jokes as well.
- How severe or explicit were the offensive jokes? As the U.S. Equal Employment Opportunity Commission (EEOC) explains, “Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so . . . severe that it creates a hostile or offensive work environment.” In other words, the more explicit or offensive sexual jokes in the workplace are, the stronger affected employees’ claims for sexual harassment will be.
- How frequent were the offensive jokes? Frequency is an important factor as well. As noted above, isolated offensive jokes will not justify a sexual harassment claim in most cases. But, if offensive jokes play a prevalent role in the workplace, then they may give rise to a claim.
- Were the jokes directed at you personally? While this is not necessary to establish a claim for sexual harassment, if you have been victimized personally, this could make it easier to prove that you have been forced to endure a hostile work environment.
- Did any of your coworkers also find the jokes offensive? This also is not necessary, but if your coworkers were also offended by the jokes in question, this can help with proving that you were dealing with a hostile work environment.
- Did you report the jokes (and, if so, what did your employer do)? When an employer receives a credible sexual harassment complaint, it has a legal duty to respond appropriately. If you reported the jokes and your employer did nothing to remedy the issue, this could strengthen your sexual harassment claim.
If you have a sexual harassment claim under Title VII based on offensive jokes, you may be entitled to financial compensation for your emotional distress, any loss of income or benefits, and other costs. If the evidence suggests that your agency supervisor or anyone in a higher position acted intentionally and with malice or reckless indifference (i.e., if your supervisor encouraged the jokes or did nothing to stop them), you could have a claim for punitive damages as well.
Speak with an Experienced Maryland Federal Employment Lawyer About Your Sexual Harassment Claim
If you would like to speak with a lawyer about filing a sexual harassment claim based on offensive jokes, we invite you to contact a Maryland federal employment lawyer for an initial consultation. To speak with an experienced attorney at The Law Firm of J.W. Stafford in confidence, please call 410-514-6099 or send us your contact information online today.