Yes, sexual jokes at work can be sexual harassment. Sexual joking is harassment when it was unwelcome to you and graphic or frequent enough to make your workplace hostile, meaning it became intimidating, humiliating, or unsafe to be there. In California, repetition of a joke is not required. One graphic joke can be sexual harassment.
You can still have a case if you laughed to smooth things over, if you never confronted the person, or if the jokes were about a coworker instead of you.
Not every offensive joke at work is sexual harassment. The joking has to be about sex, gender, your body, your sexual orientation, or your gender identity. Joking with no connection to any of those falls outside sexual harassment, even if it makes work unpleasant.
Some examples of sexual joking:
Your situation can be different from any of the examples. The defining characteristic, though, is that the unwelcome joking was about sex, gender, or your body.
Where the joking happens does not change anything. Spoken in a meeting, typed in Slack, texted after hours, posted in a group chat, said on a video call. Jokes told at a work happy hour or a client dinner count too. You also do not have to prove your productivity dropped, since what counts under California law is whether the joking made your workplace hostile.
Joking is one form of sexual harassment. A supervisor who ties your promotion or your shifts to sex is a different type called quid pro quo sexual harassment.
It is understandable to laugh at a joke that made you uncomfortable. Laughing can keep you out of a confrontation with a coworker, or out of trouble with a boss who controls your schedule. A laugh in the moment does not indicate the joke was welcome.
None of the following invalidate your case.
If you told sexual jokes of your own, expect your employer to argue that you couldn’t have minded hearing them. How far that argument gets depends on how much you took part. A one-off joke to fit in with your coworkers may be easier to explain than trading jokes back and forth over time.
It can be. Nothing in California law says a joke has to happen twice before it counts. One joke can qualify on its own when it is graphic, threatening, or meant to degrade you.
More commonly, harassment is built out of milder joking that keeps happening, where no single joke would get you anywhere by itself. The jokes will be looked at as a whole instead of one at a time. There is no set number that turns joking into harassment. A year of small remarks can get you there, and so can one joke on a single afternoon.
Sexual orientation and gender identity are protected in California. Jokes that target either one are sexual harassment.
Examples:
The person telling the joke does not have to know your sexual orientation for the joking to be harassment. A coworker who jokes that you are gay is harassing you whether you are gay or not.
Whether or not that coworker is attracted to you is irrelevant. A coworker with no interest in you at all, telling the jokes only to embarrass you, is still harassing you.
Sexual harassment does not have to come from a man, and it does not have to be aimed at a woman. A man who jokes about another man's body is harassing him. A woman who jokes about another woman's body is harassing her.
You can sue your employer over sexual joking whether it was your boss or a coworker that made the jokes. If it was a coworker, you also have to prove in court that your employer knew the sexual jokes were occurring but did nothing to address them.
Your employer is legally responsible for them even if nobody else at the company knew they were happening.
There are two things you have to prove to hold your employer legally responsible. The first is that the company knew the joking was happening. Maybe you told a manager, or maybe the joking was happening out in the open where a manager should have noticed it. The second is that the company did not do anything to stop it. An employer that takes the problem seriously will talk to you, talk to the people who were there when it happened, and discipline the coworker who made the jokes. A written warning that does not stop the joking will not protect your employer from a lawsuit.
You can also sue the person who made the jokes. California lets you name that coworker, or that supervisor, as a defendant in the same lawsuit as your employer.
None of this depends on how big your company is. California's harassment rules cover every employer that has at least one employee.
The person making the jokes does not have to work at your company. A customer, a client, a delivery driver, or a contractor can all make jokes that count as sexual harassment. If your employer knew about their joking and did nothing to address it, you can sue your employer over it.
Start saving the jokes now, before you report anything to your employer. If you have already reported the joking, save whatever you can still get to. Once you complain, you can lose your access to the evidence. Most companies shut off your Slack and your email the same day they fire you or put you on leave. The coworker who posted the jokes can delete them at any time. Slack and Teams also erase old messages on a schedule your company sets, and nobody tells you when that is going to happen.
A screenshot of the joke by itself is easy for your employer to wave off, because nothing in it shows who typed the joke or when. Check that the screen shows all of the following.
Most of the joking at work may be spoken, and there is nothing to screenshot. Write those jokes down the same day they happen. Put down what was said, who said it, where it happened, and the names of anyone else who was there. Take a photo of anything physical, like a printed cartoon on the breakroom wall or something drawn on a whiteboard.
A note you wrote the same afternoon is much harder for your employer to dispute than something you try to remember two years later. Even if the messages are already gone, your own notes still count as evidence.
Send every screenshot and every note somewhere your employer does not control, like your personal email, your own phone, or a personal cloud account. If the only copy is on your work laptop or in a work account, you can lose it the day you lose access.
Saving your own screenshots is different from taking company files. Do not download confidential documents that you are not otherwise allowed to have. Your employer can fire you for that, and the reason will have nothing to do with the sexual joking.
Not without telling them first. California requires everyone in a private conversation to agree before anyone records it, and recording without that agreement is a crime.
It is hard to judge this from inside the job, especially when the joking built up slowly over months. Any one of the following is a sign that it has gone past banter.
Other details make the joking more serious. Jokes aimed at you by name are harder for an employer to write off as office culture than jokes told to a whole room. Jokes made by someone who decides your schedule, your pay, or your reviews are harder to shut down, because telling that person to stop carries a cost for you. If another coworker has already complained about the same person, that tells you this is not a question of how sensitive you are.
Punishing you for complaining about sexual joking is illegal in California on its own, separately from the joking you complained about. Retaliation can look like:
What all of those have in common is that they cost you something at work. A coworker who stops talking to you, or a group that leaves you out of lunch, is miserable to live with but does not carry that kind of cost, so it is not retaliation by itself.
Write down the date you complained and the date anything changed at work. A short gap between the two can be the strongest evidence you have. If the change is a write-up or a bad review, email HR and ask what specifically it is based on, because an employer that cannot point to anything before your complaint has a harder time explaining the timing later.
Even if a jury decides the joking was not bad enough to be harassment, your employer can still be held liable for punishing you over the complaint. All you needed was a reasonable belief that the sexual joking broke the law at the time you complained, and you did not have to be right about that.
In California you have three years to file a complaint with the state over sexual joking at work. The complaint goes to the Civil Rights Department, which is the state agency that handles workplace harassment. If the joking went on for months or years, the three years starts on the last day it happened rather than the first.
You have to file with the Civil Rights Department before you can sue your employer. Once you file, you can ask the department to investigate what happened, or you can ask it for a right to sue notice, which is a letter that lets you take your employer to court without waiting for that investigation.
The deadlines, in one place.
You do not get extra time because your employer is looking into your complaint. Waiting to see what HR does with your email, or sitting through an investigation that drags on for months, uses up the same three years.
An employment lawyer can tell you which deadlines apply to your case.
Jeremy Pasternak represents employees, not the companies they work for. If sexual joking is going on at your job, call his office and describe what has been happening. You will find out whether it counts as sexual harassment under California law and how much time you have left to do something about it.
Bring any screenshots or notes you have saved. If you have not saved anything yet, call anyway, and start writing down what gets said to you at work from today forward.
Disclaimer: The information provided on this website is for general informational purposes only and does not constitute legal advice. Viewing this content does not create an attorney-client relationship with The Law Offices of Jeremy Pasternak. Employment law varies by state and situation, and legal outcomes depend on specific facts and applicable laws. While we make every effort to ensure accuracy, laws change, and unintended errors or omissions may occur. For advice on your particular circumstances, consult an attorney.
