I. What qualifies as sexual harassment at work in Washington?

I am often asked what “counts” as sexual harassment in the workplace. As a sexual harassment attorney, and a frequent litigator of sexual harassment cases in Washington and Oregon, I am constantly learning about new behaviors that qualify as sexual harassment, because harassers are always coming up with new ways to gain power over their victims.

As a recent example of sexual harassment, the famous singer Lizzo, her company, and her dance captain were accused of sexual harassment, and many members of the dance team leveled allegations of sexual harassment in their complaint filed in California, which included the following:

• – those who attended regular afterparties were favored by Lizzo;
• – Lizzo pressured dancers into unwanted sexual situations;
  As an example, at an Amsterdam strip club, Lizzo allegedly invited employees and led chance for employees to take turns touching nude performers’ bodies and breasts, catching dildos launched from the performers’ vaginas, and eating bananas protruding from the performers’ vaginas;
• – Lizzo allegedly pressed a member of her security staff to get on stage and began yelling, “take it off”;
  Lizzo made comments about employees’ weight gain, which the employee claims Lizzo knew was due to stress eating and anxiety;
• – Lizzo invited employees to a performance, but concealed that it was a nude performance at a cabaret bar;
  When of the employees resigned, she said “Lizzo aggressively approached [her], cracking her knuckles, balling her fists” and “feared that Lizzo intended to hit her and would have done so if one of the other dancers had not intervened.
• – Lizzo’s dance captain preached her Christian beliefs and “took every opportunity to proselytize to any and all in her presence regardless of protestations.”
• – after discovering one of the employees was a virgin, the dance captain discussed the subject in interviews and posted about it on social media, the suit says.
• – And when cast members asked the dance captain to stop pressuring the employee— whom the captain regarded as a “non-believer,” according to the suit — about her faith, the dance captain responded: “No job and no one will stop me from talking about the Lord.”
• – The dance captain regularly shared her views against premarital sex and discussed her masturbation habits and sexual fantasies.

It will be interesting to see how this case turns out against Lizzo, but many of these behaviors can be categorized into certain types of sexual harassment that have been found to break the law and lead to valid claims against employers.

Below are several statements, jokes, acts, and behaviors that courts in Washington, Oregon and other jurisdictions have identified as evidence of sexual harassment or gender discrimination in the workplace.

II. What is sexual harassment generally?

Under the law, sexual harassment or hostile work environment based on sex consists of the following four basic elements in Washington (and is similar in Oregon):

• 1. Based on sex. That there was language or conduct concerning gender or sex.
• 2. Unwelcome. That this language or conduct was unwelcome in the sense that the plaintiff regarded the conduct as undesirable and offensive, and did not solicit or incite it;
• 3. Altered the terms or conditions of employment. That this conduct or language was so offensive or pervasive that it altered the conditions of the plaintiff’s employment. In ord for the conduct or language to alter the conditions of employment it must either be severe or pervasive; and
• The conduct is imputable to the employer. The conduct is imputable to the employer if at least one of the three propositions is met. Either
  • a. That an owner, manager, partner, or corporate officer participated in the conduct or language; or
  • b. That management knew, through complaints or other circumstances, of this conduct or language, and the employer failed to take reasonably prompt and adequate corrective action reasonably designed to end it; or
  • c. That management should have known of this harassment, because it was so pervasive or through other circumstances, and the employer failed to take reasonably prompt and adequate corrective action reasonably designed to end it.

Focusing primarily on the first and third elements above, below is a deeper discussion of several different types of statements or conduct that have been found to create a hostile work environment based on sex.

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

A. Gender-based epithets or insults like “bitch”, “cunt”, “slut”, etc.

Courts have held that the use of epithets directed at gender such as “slut” “bitch” “hoe” and “cunt”, “whore”, or even words like “baby”, “doll”, “honey” or “hun” that are used in the workplace can be used as evidence to demonstrate a hostile work environment based on sex.

For example, one court issued a stern opinion on this issue, holding unequivocally that, “when a co-worker calls a female employee a `bitch,’ the word is gender-derogatory.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 810 (11th Cir.2010) (en banc) (noting that both the original definition of the term — “the female of the dog” — and its secondary meanings — “a lewd or immoral woman” or a “malicious, spiteful, and domineering woman” — are gender-specific), citing Webster’s Third New International Dictionary 222 (2002). Other courts have concluded that “additional evidence that ‘bitch’ is ‘sex based’ for purposes of establishing gender-based harassment is not necessary.” Passananti v. Cook County, 689 F.3d 655, 659 (7th Cir. 2012).

Courts have found other examples of gender-based epithets as evidence of a hostile work environment. In Harris, the president insulted plaintiff because of her gender, stating she was a “dumb ass woman” and “you’re a woman, what do you know.” See  Harris v. Forklift Systems, Inc., 510 U.S. 17, 19, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). And in Hacienda Hotel, sexual harassment was found where, among other things, a supervisor called female employees “dog[s]” and “whore[s].” EEOC v. Hacienda Hotel, 881 F.2d 1504,1508 (9th Cir. 1989). 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 Galvan, the victim alleged that she was verbally abused and sexually harassed by store manager, Carlos Guilani (“Guilani”). She stated that he would call her and other female employees “Mexican pigs” and “bitches” and he referred to body parts in an unwanted way. The court concluded that Galvan had stated sufficient facts to state a cognizable sexual harassment claim under Title VII. Galvan v. TACO, No. 2: 12-cv-01135-GMN-CWH (D. Nev. Dec. 3, 2012); see also Bader v. Special Metals Corp., 985 F. Supp. 2d 291 (N.D.N.Y. 2013) (“Detailed variety of appalling misogynist conduct, including … sexually suggestive comments … `blow job,’ `slut,’ `whore,’ and `cunt,’ … sufficiently severe or pervasive to create hostile work environment.”)

In addition, other less obvious nicknames or phrases such as “girl” “honey”, “doll”, or “dear” can constitute evidence of sexual harassment.  For example, “[t]he words ‘honey’ and ‘baby,’ although not overtly sexual, may be sexual in nature if their use occurs based on the  recipient’s gender.” See Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1000-1001 (10th Cir. 1996); see also Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 880 (D. Minn. 1993). (holding that “pet names” and terms that persons in romantic relationships might use such as “honey” and “babe” are sexual in nature). In Anderson, the harasser called the victim, “gorgeous,” “dear,” “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). And in Draper, the harasser referred to the victim as “beautiful” and “gorgeous”. Draper v. Coeur Rochester, Inc., 147 F.3d 1104 (9th Cir. 1998).

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. Sexual advances, romantic 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.

Regulations from the Equal Opportunity Commission state that harassment includes “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature…” See 29 C.F.R. §§ 1604.11(a).

In Hacienda Hotel, the court found a hostile working environment where the superior frequently made sexual advances towards 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. Perry v. Costco Wholesale, Inc., 98 P.3d 1264, 1273 123 Wash. App. 783 (Div. I, 2004).

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). In Miller, the court found evidence of sexual harassment where the victims, among other things, were subjected to unwanted sexual advances, requests for dates, unwanted kissing, and requests for sex and other sex acts.

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, text messages, “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. In the Prospect case, although the victim had never asked the harasser out or otherwise made overtures to her, she (a married woman) handed the victim (a male) love notes and made remarks to him that “hurt” him and were “embarrassing.” See e.g. EEOC v. Prospect Airport Services, Inc., 621 F.3d 991 (9th Cir. 2010). The notes mentioned that she was “turned on” and wanted to “go out”, which the victim took as “basic flirtatious come-on” and an “unwelcome flirtatious advance, and he told her he was not interested. The harasser, Munoz, gave Lamas multiple “love notes” and in the third one, Munoz wrote Lamas that she was having “crazy dreams about us in the bathtub” and boasted that she gave a “very good bath wash and body massage.” Lest there be any doubt, Munoz said “I do want you sexually and romantically”. The court found that this was enough evidence to survive summary judgment.”

In Ellison, the harasser sent the victim unwelcome and creepy love letters or “love notes” and made overt date requests from co-workers. The court found the work environment to be sufficiently hostile. Ellison, 924 F.2d at 878, 880-81.

In Yamaguchi, the harasser sent the victim unwanted notes, gifts, and e-mails. Although she repeatedly asked him to stop, the harasser continued to give her 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). The court found this conduct to be severe and pervasive.

In Christian, a bank customer stalked and harassed the victim in her workplace at a bank and Umpqua failed to take effective action to address the harassment. See Christian v. Umpqua Bank, 984 F.3d 801, 805 (9^th Cir. 2020). The customer began visiting the bank to drop off “small notes” for Christian. The notes stated that Christian was “the most beautiful girl he'[d] seen” and that the customer “would like to go on a date” with her. The customer also sent Christian a long letter stating that she “was the most beautiful woman he’s ever seen, that . . . [she] was his dream girl, that [they] were meant to be together, [and] that he wanted to be with [her].”

In Ellison, the Ninth Circuit concluded that a letter sent to the victim by her harasser describing how he “had been ‘watching’ and ‘experiencing’ her” was actionable harassment.  See Ellison v. Brady, 924 F.2d 872, 881 (9th Cir. 1991).

Finally, in Zoria Farms, the harasser subjected female employees to unwelcome conduct, including but not limited to, hugging and kissing female employees, following female employees to the bathroom, staring at female employees, and sending unwanted gifts to female employees. EEOC v. Zoria Farms, Inc., No. 1: 13-cv-01544-DAD-SKO (E.D. Cal. May 13, 2016). The court concluded that the evidence sufficiently established sexual harassment.

Therefore, make sure to keep track of and preserve evidence of any notes, text messages, 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 or sexual assault.

Rape is extremely serious and can certainly be used as evidence of sexual harassment. Even “jokes” about rape, discussions about rape, or threats of rape can be used as evidence of a hostile work environment based on sex.

“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). “Physical sexual assault has routinely been prohibited as sexual harassment under [federal discrimination law].” In Little, the court concluded that rape is unquestionably among the most severe forms of sexual harassment. Little v. Windermere Relocation, 265 F.3d at 912 (“… Being raped is, at minimum, an act of discrimination based on sex.”); see also 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.”). As noted by one court, “a sexual assault by a supervisor, even on a single occasion, may well be sufficiently severe so as to alter the conditions of employment and give rise to a hostile work environment claim[.]” See Brooks v. City of San Mateo, 229 F.3d 917, n.9 (9th Cir. 2000).

Even the threat or discussion of rape can be evidence of sexual harassment. In Draper, the harasser, among other things, walked up from behind the victim as she was shoveling dirt and told her to “be careful who you bend over in front of” essentially joking that she would be sexually assaulted if she bent over in front of the wrong person. Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1106 (9th Cir. 1998)

In Oncale, the victim 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.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). The Supreme Court that this was sufficient evidence to find a hostile work environment on the basis of sex.

Therefore, the law treats rape, sexual assault, or even the use of “jokes” or discussion of rape or sexual assault to be serious and can be found to be strong evidence of sexual harassment in the workplace.

E. Discussing one’s sex life, discussing sexual fantasies, or inquiring about one’s sex life, romantic life or masturbation.

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

In Draper, the harasser’s behavior took a “decidedly sexual tone”, telling the victim for example that his sex life with his wife was not very good and that he wished he had met Draper before he had married. See Draper v. Coeur Rochester, Inc., 147 F.3d 1104 (9th Cir. 1998). Draper additionally talked about his sexual fantasies, including his desire to have sex with both Draper and his wife. Id. Similarly, 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).

In Vandermeer, the plaintiffs testified that the harasser often complained about the state of his sex life and expressed a desire to have an extramarital affair with another coworker. This evidence was used by the court to deny the defendant’s motion for summary judgment. See Vandermeer v. Douglas County, 15 F. Supp. 2d 970 (D. Nev. 1998).

In Maturo, the harasser asked the victim 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).

In Reeves, the court held that a reasonable jury could find that the harassment the victim faced was sufficiently pervasive to alter the conditions of her employment, when a co-worker discussed: (1) “getting off” in reference to masturbation; (2) a song that referenced oral sex and (3) an experience in a hotel with naked women; (4) On the day before this co-worker’s last day at the office, moreover, Reeves was told that she should bring earplugs to work the next day because the co-worker had said that he could behave however he wanted on his last day. Reeves testified that the co-worker’s last day “was just like any other day: full of sexually offensive remarks, comments, stories, conversation, language — just like any other day….” Reeves v. CH Robinson Worldwide, Inc., 525 F.3d 1139 (11th Cir. 2008).

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, a Washington case, the court found the harasser’s comments, 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?” Additionally, the harasser made remarks that the victim should join his mile-high club, which the court concluded “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 the harasser’s discussion about his wife’s preferences during sex, references to oral sex, graphic details about the harasser’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, memes, graffiti, music, or cartoons.

Sending or showing sexually explicit videos, photos, or other media to others is evidence of sexual harassment. See Fleetwood v. Wash. State Univ., 2022 U.S. Dist. LEXIS 113188, *18-19 (E.D. Wash. July 9, 2021). In Fleetwood, the harasser’s “undesirable conduct” specifically included “his sending of explicit photos/videos and showing other cadets naked and inappropriate photos of women.” Id. The Fleetwood court concluded that sending unwanted sexual photos or videos “fits squarely into the examples of unwelcome sexual conduct sufficient to create a hostile environment…”.

Lewd drawings, cartoons, graffiti or photos can also often found to be evidence of sexual harassment. In Asarco, the court admitted sexually explicit graffiti directed at employees as relevant to sexual harassment. See Arizona v. Asarco LLC, 773 F.3d 1050 (9th Cir. 2014).

Similarly, in Waltman, sexually explicit pictures and graffiti were drawn on the walls of the powerhouse, on the restroom walls and in the elevator.  Some of these drawings were directed at Waltman.  Waltman v. International Paper Co., 875 F.2d 468, 477 (5th Cir.1989). Waltman testified that in the bathroom there were “very, very explicit drawings of women with their legs spread out and this type of thing” and that there were “pornographic pictures” in many of the lockers, which the men would leave open. Another witness testified that there were drawings of naked men and women on the walls. The court in Waltman concluded that sexual graffiti that was not directed at plaintiff was nonetheless relevant to show  hostile work environment under Title VII.

In Luke, the harasser directly targeted the victim by sending her a video of him receiving oral sex in slow motion. Luke v. Dough Boy Inc., No. 2: 18-cv-07456-ODW (GJSx) (C.D. Cal. Jan. 7, 2020). The court found that the video alone created a hostile work environment because it was independently severe.

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.” The court in Anderson concluded that it was a hostile work environment based on sex.

A recent Ninth Circuit case held that the district court erred in rejecting the employees’ hostile work environment claim as incurable and legally deficient because the employer played sexual and violent music in the workplace. The court found that the employer allegedly infused the workplace with sexually demeaning and violent language, including through the music, which may support a Title VII claim for hostile work environment. See Sharp v. Activewear, L.L.C., 2023 U.S. App. LEXIS 14130, *1.

And in Soumekh, a recent New York state case, the victim received several explicit memes which included photos with messages containing explicit content, profanity, and references to the sexual orientation of Plaintiff’s boyfriend. See Soumekh v. LD Consulting Services, Inc., No. 18-CV-6337 (DG)(SIL) (E.D.N.Y. Aug. 10, 2022). Some of the numerous memes included photos with text such as, “Ben just caught me blow drying my penis and asked what I was doing? Apparently `heating your dinner’ was not the right answer,” id. at 292-93, “what if I told you anyone named Ben is gay,”  and “I’ve had my penis in Ben’s bum.” 

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

G. Comments about clothing, makeup, appearance, or demands/requests to wear more revealing clothing.

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

In Rosario, the harasser started bringing people around to look at Rosario’s clothes, which he criticized as overly revealing, and he pointed out to the others that her underwear was visible. Another employee, testified that the harasser repeatedly told him that the victim’s clothing made him “uncomfortable.” One of the witnesses reported that the harasser would “talk[] about her underwear and especially her panties” within five feet of where Rosario sat, “right behind her back, and she could listen to that, when she was talking to the patients.” The court ultimately included that Rosario adduced sufficient evidence for a jury to find that she was subjected to conduct that was “so severe or pervasive that it altered the terms or conditions of her employment.”

In Rogers, the court concluded that, “[c]ertainly, a supervisor encouraging an employee to wear make-up, referring to her as a ‘ho,’ suggesting that she wear revealing clothing, telling her to close the door and propositioning her to “make out,” and touching her buttocks are well within the range of behaviors potentially constituting unlawful sexual harassment. Rogers v. Harker, No. 19cv2391 JM (AHG) (S.D. Cal. May 25, 2021); See also EEOC v. Sage Realty Corp., 507 F.Supp. 599 (S.D.N.Y.1981) (requiring women to wear revealing clothing that prompts sexual harassment from customers and male co-workers adversely affects the terms of employment.)

In Yamaguchi, the harasser made sexual gestures and remarks about the victim’s body, perfume, and clothing and about other women in the workplace. The court found this was sufficient evidence of sexual harassment. Yamaguchi v. US Dept. of the Air Force, 109 F.3d 1475 (9th Cir. 1997).

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 clothing such as tighter shorts. Sangster v. Albertson’s, Inc., 991 P.2d 674, 678 1017 (Div. III,. 2000).

As you can see in the above cases, comments about a person’s clothing can be used to show sexual harassment in the workplace.

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

In Steiner, a hostile environment case, a supervisor “was indeed abusive to men, but … his abuse of women was different. It relied on sexual epithets, offensive, explicit references to women’s bodies and sexual conduct.” Id. at 1463 (citing Harris v. Forklift Sys. Inc., 510 U.S. 17, 19, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Therefore, in addition to comments about clothing, comments about a woman’s body, body parts, or physical appearance can be evidence of sexual harassment.

In Yeary, the plaintiff, a male cashier, alleged he was harassed and sexually propositioned by a male coworker in a number of instances, including one in which the coworker “pinned [the plaintiff] against the wall and began to whisper obscene comments about [the plaintiff’s] physical appearance.” Yeary v. Goodwill Industries-Knoxville, Inc., 107 F.3d 443 (6th Cir. 1997). The court concluded that this was enough to determine a claim for sexual harassment.

Other courts have held that humiliating statements about a person’s physical appearance can constitute a hostile work environment. See, e.g., Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) (“To suggest that a human being’s physical appearance is essentially a caricature of a jungle beast goes far beyond the merely unflattering; it is degrading and humiliating in the extreme.”); Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000) (“Repeated derogatory or humiliating statements . . . can constitute a hostile work environment.”).

In Kaytor, the harasser engaged in several different behaviors and made several comments about the employee’s body including giving a gift of the pussy willow bush to employee. The court concluded that “in the context of the other evidence in this case”, the gift supported a claim for sexual harassment. Kaytor v. Electric Boat Corp., 609 F.3d 537, 539-540 (2d Cir. 2010). That evidence showed that the harasser frequently made comments about women’s bodies; that the victim many times caught the harasser leering at her and staring at her body; and that McCarthy had already made two other blatant references to Kaytor’s genitalia: stating on one occasion that Kaytor was about to spread her legs for her doctor; and on another, when Kaytor was going to see her gynecologist, that she was going where every man wanted to be. The court found that this evidence supported a claim for sexual harassment and denied a motion for summary judgment.

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) (remanded on other grounds). The harasser also required the women to wear dresses or skirts with nylons and heels “specifically so he could admire women employees’ legs.” Id.

In R&R Ventures, the harassers repeated close examination of female employees’ bodies, his inquiries about pant size, and his repeated references to the size of Scott’s buttocks and breasts demonstrates that Wheeler behaved differently towards his female employees and supported a claim for sexual harassment. EEOC v. R&R Ventures, 244 F.3d 334, 339 (4th Cir. 2001). The court thus concluded that “the evidence indicates Wheeler did more than engage in generally abusive, though non-actionable, behavior.” Id. at 339.

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 (Div. III, Oct. 25, 2011).

In Yamaguchi, the harasser made sexual gestures and remarks about plaintiff’s body, 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 used of evidence of sexual harassment or a hostile work environment based on sex.

In Hacienda Hotel plaintiff was pregnant.  During her pregnancy, 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 “that’s what you get for sleeping without your underwear”. EEOC v. Hacienda Hotel, 881 F.2d 1504, 1507 (9th Cir. 1989). The court found these comments to be evidence of gender discrimination.

In Isberner, the harasser made comments about Sullivan’s pregnancy and weight; and Isberner witnessed Rohr belittling Sullivan. Although Sullivan testified that she also witnessed Rohr raise his voice toward male employees and was not sure whether he yelled at female employees more frequently, his other gender-based treatment toward her, coupled with no evidence of specific instances of similar behavior toward male employees, could persuade a reasonable jury that Rohr’s behavior was based on Sullivan’s gender. Isberner v. Walmart, INC., No. 20-2001-JAR-KGG (D. Kan. Oct. 13, 2020). Summary judgment was thus denied.

And in Hamilton, the 11^th Circuit reversed summary judgment in favor of the employer, when the victim was able to demonstrate that she was terminated for her pregnancy through negative comments about her pregnancy and parental leave by her supervisor. Hamilton v. Southland Christian School, Inc., 680 F.3d 1316 (11th Cir. 2012). When Hamilton informed her supervisor she was pregnant, she testified that her supervisor, “put his head back and he said, we feared something like this would happen.” Hamilton testified that John Ennis told her that she was going to have to “take the year off” because replacing a teacher taking maternity leave after the school year had started was hard to do. She also testified that it appeared to her the Ennises’ primary concern was her request for maternity leave. According to Hamilton’s deposition testimony, at some point during the meeting, she asked John Ennis: “[W]hat is the issue here? Is it because of the coverage? Or is it because of the premarital conception? And he said both reasons.”

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

J. Inappropriate touching, kissing, grabbing, groping, or massaging.

Several different types of physical grabbing, touching groping, or massaging can be found to be sexual harassment, and is also sometimes stronger than words or comments alone. Cases that involve inappropriate and unwated touching can often be more valuable, especially if there are witnesses or evidence of the incident.

In a more recent case, one instance of grabbing an employee’s buttocks was sufficient enough to show a hostile work environment. See Wilson v. Archdiocesen Hous. Auth., 2023 Wash. App. LEXIS 1174, *4. In Wilson, the employee requested her superior’s assistance. When Wilson bent down, the harasser “grabbed” her buttock with one hand, which Wilson described as occurring in a “fresh way like a ‘woo’ type of deal.” Wilson immediately grabbed Duncan’s hand, held it “real tight,” and told her “don’t ever touch me like that,” demonstrating that it was unwelcome.

In Allen v. Global Advisory Group, the defendant acknowledge that the harasser gave the victim several neck and shoulder massages and slapped her buttocks. See Allen v. Global Advisory Group, Inc., Wn. App. LEXIS 1257, *2. (Div. I, 2009).

In Montero, over a two-year period, one supervisor called the victim a “butt-kiss,” told Montero he was going to spank her, rested his chin on her shoulder, grabbed her arms until she said “ouch,” and made crude gestures. Montero v. Agco Corp., 192 F.3d 856 (9th Cir. 1999). Another supervisor grabbed his crotch while speaking with her, placed his face on her bottom, told her he had sexual dreams about her, put his hand on her chair as she sat down, tried to bite her neck, and knelt in front of her and tried to put his head between her knees. Id. Another employee had pulled her pants up from behind by the belt loop, commented about the small size of his penis, and placed notes on her desk telling Montero to dance naked on the desk or to take off her clothes. Id.

In Thomas, the harasser frequently approached the victim without invitation, and pressed his body against hers for several seconds, and he groped her breasts and bottom during work hours.  Plaintiff repeatedly asked the harasser to stop, but he continued to make unwanted sexual advances and continued touching and groping her. Thomas v. Jin & Sang Corporation, No. C13-1032 RAJ (W.D. Wash. Feb. 28, 2014).

And in Miller v. Zee’s. the harasser (Templeton) engaged in a wide range of sexually harassing behavior including but not limited to (1) touching Mathews in the ribs, trying to massage her shoulders and grabbing cigarettes out of her apron pocket which lay against her abdomen; (2) Templeton hit Miller on the buttocks with a menu; (3) a different harasser asked Miller for a date, Miller said no and Stradley continued to approach her including kissing her on the back of the neck; (4) Feliciano, the cook, kissed Mathews on the cheek; and (5) Stradley would come up behind Hancock and try to rub her back and shoulders. Miller v. Zee;s Inc., 31 F. Supp. 2d 792, 800-801 (D. Or. 1998) The court found that these instances of offensive touching (or attempts), as well as other evidence was sufficient to support a hostile work environment based on sex.

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

K. Staring, Ogling, Leering, “Elevator Eyes”, or looking at someone “up and down”.

Staring, leering, “ogling”, or “elevator eyes”, looking someone up and down, “checking them out” or staring at their private areas or body parts can be evidence of sexual harassment.

In Ortega, about three times a week, the harasser would come and look at Ortega and her female co-workers as they were changing out of the rain suits in the private area. Additionally, Manzo also approached Ortega and said “Ay, Rosita” several times, and on one occasion, while Ortega was washing with a pressure hose, Manzo walked up behind her, brushed his genitals up against her buttocks, and whispered “Ay, Rosita” in her ear. Ortega v. Neil Jones Food Company, No. 12-CV-05504-LHK (N.D. Cal. Jan. 21, 2014)

In Miller, the court considered the fact that busboys in the restaurant looked the victims “up and down” in a sexual manner as evidence that contributed to the finding of sexual harassment.  See Miller v. ZEE’S, INC., 31 F. Supp. 2d 792 (D. Or. 1998).

In Evans Fruit Co., a crew leader, Simon Ramirez, would ogle the victim’s backside, and during the subsequent season, he again ogled her backside and also tried to hold her hand. During that season, Ramirez additionally “propositioned” her and invited her out to lunch. EEOC v. Evans Fruit Co., Inc., 872 F. Supp. 2d 1107 (E.D. Wash. 2012). The court found that based on this evidence alone, a jury could find that it was a sexual proposition since Ms. Bravo was a married woman and Simon Ramirez knew she was married and knew her husband, and according to Ms. Bravo, told her that her husband did not need to know if she went out with him for “lunch.” Id.

In Glasgow, a male co-worker would stare at the victim “in a sexually intimidating way, follow her about the plant, in such a way that it intimidated her, [and] interfered with her work performance”. Glasgow v. Georgia-Pacific, 693 P.2d 708, 103 Wash. 2d 401 (1985). The victim tried to avoid him and informed the plant manager “who did nothing”. Id. She and yet another female employee confronted the plant manager about this “continued sexual harassment”. The court used this as evidence of sexual harassment based on gender. Id.

In Sanchez, the court concluded that 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 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).

And in Zetwick, the harasser repeatedly asked the victim how much she weighed, until Malugani answered. Zetwick v. County of Yolo, 850 F.3d 436, 439 (9th Cir. 2017) During this incident, Prieto stared at the victim’s body in a sexually suggestive manner and that during the incident, the victim was embarrassed and uncomfortable. Id. at 440. The court reversed summary judgment and found enough evidence to go to the jury and determining that “summary judgment was inappropriate”. Id. at 442.

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.

L. Jokes or discussions about sex workers

In Draper (discussed above), among other things, the harasser asked what a Mexican prostitute was called and joked that the answer was “a frijole”, which “frijole” is Spanish for “bean”. Draper v. Coeur Rochester, Inc., 147 F.3d 1104 (9th Cir. 1998)

In Tafoya, the harasser told the victim she should just come over in her bathrobe. She refused. After the victim’s friend stayed the night at her house, the harasser made a comment implying that Gossard was a prostitute. Tafoya v. State Human Rights Com’n, 311 P.3d 70, 73-74,177 Wn. App. 216 (Div. II, 2013). Once, the harasser poked the victim in the stomach and commented that she was “gaining weight and looked like the Pillsbury doughboy.” The court found that this and other evidence was evidence of sex harassment under Washington’s Law Against Discrimination, RCW 49.60. Id.

In Lively, according to Ms. Lively’s testimony at trial, after the arrival of one harasser, he and another man referred to women as “bimbos,” “hookers and prostitutes and old maids and dykes and girls… [o]n a daily basis.” Lively v. Flexible Packaging Ass’n, 830 A.2d 874 (D.C. Cir. 2003)Ms. Marjina Kaplan, another female employee, heard the words “bimbos, broads, boobs” “pretty often[;] daily, probably.” Id. at n. 5. The court concluded that this was “offensive, insulting and demeaning language about women; engaging in actions with sexual overtones trhat humiliated women” and found that it supported a hostile work environment based on sex. Id. at 893.

In Scolari the court found that male employees looking at hookers online, discussing women’s bodies, including their `pussies’ rise to the level of severe or pervasive conduct (or add to that conduct) to create a hostile work environment sufficient to survive summary judgment. See U.S. E.E.O.C. v. Scolari Warehouse Markets, Inc., 488 F. Supp. 2d 1117, 1138 (D. Nev. 2007)

If people are discussing sex workers in the workplace, it is possible that this could be evidence of sexual harassment. Make sure to document this evidence and speak to an attorney about a potential case against the harasser or employer.

M. Physically threatening behavior or standing in a woman’s way

In determining the existence of an abusive work environment, courts consider whether the discriminatory conduct is “physically threatening or humiliating” rather than a “mere offensive utterance.” Sangster, 991 P.2d at 679.

In Conley, the court found evidence of sexual harassment where the harasser stood in the plaintiff’s office doorway, “trapping her in her office,” and made creepy and flirtatious comments about wanting to see the plaintiff in a bikini. Conley v. Stockman Bank, No. CV-14-86-BLG-SPW-CSO, 2014 WL 5417721, at *1 (D. Mont. Oct. 14, 2014). The harasser also “stood and lingered at [the plaintiff’s] office door, staring eerily at [the plaintiff] for an uncomfortable period of time, making her feel trapped and isolated in her office.” Id. at *2.

Although not a sexual harassment case, in Welsch, a harasser attempted to assault Welsch sexually, blocking her exit, and laughing. The court found that these actions were “extreme and go beyond all bounds of decency” finding these facts sufficient for the tort of outrage. See Welsch v. Camelot Soc’y, 1997 Wash. App. LEXIS 261, *18 (Div. I, 1997).

In Zamora, the employee alleged that on one occasion her harasser tried to kiss her while the two were alone in a trailer, then put his arm across the doorway as if to block her exit. The court found the gesture of blocking someone’s exit might reasonably be perceived as a threat of violence. The court denied summary judgment and concluded that a reasonable woman could perceive a threat of violence in the harasser’s alleged conduct. See Zamora v. Sacramento Rendering Co., 2007 U.S. Dist. LEXIS 3305, *21.

In National Education Association, the female employees alleged that a male supervisor, with little or no provocation, shouted at them, screamed at them, used foul language, invaded their personal space, and used threatening physical gestures. See EEOC v. Nat’l Educ. Ass’n, 422 F.3d 840, 842 (9^th Cir. 2005). The relevant content of the behavior in question included repeated and severe instances of shouting, “screaming,” foul language, invading employees’ personal space (including one instance of grabbing a female employee from behind), and threatening physical gestures, all apparently following little or no provocation. Id. at 844. The court then concluded that the record reveals at least a debatable question as to the objective differences in treatment of male and female employees, and found that the evidence “strongly suggest[ed] that differences in subjective effects were very different for men and women.” Id. at 846.

In short, demonstrating that a person is the victim of physically threatening or intimidating behavior can help demonstrate sexual harassment or a hostile work environment based on gender.

N. Making sexually offensive gestures or facial expressions

In Perry, a co-worker made inappropriate sexual comments and gestures towards the employee, and he exposed himself to her. However, he was not fired or transferred. See Perry v. Costco Wholesale, Inc., 123 Wn. App. 783, 788 (Div. I, 2004). The harasser began to make inappropriate sexual comments and gestures toward Perry. Smith would comment on an almost weekly basis on the size of his tongue in relation to sexual acts and then stick out his tongue at Perry. Smith also placed a phallic-shaped item on her desk. Id. at 789.

In Prospect, the court denied summary judgment where a male employee (Lamas), a recent widower, alleged that a married female co-worker (Munoz) began making sexual overtures. The employee rejected her sexual advances, but she continued to proposition him for sex, made sexual gestures, and recruited other co-workers to deliver messages to him. The employee complained to management, but the employer’s responses were ineffectual. Every time Lamas walked by her at work, there was “some gesture” including licking her lips suggestively, “blow job imitations” and asking if Lamas “want[ed] to have some fun.” See EEOC v. Prospect Airport Servs., 621 F.3d 991, 993 (9^th Cir. 2010).

And in Burns, the plaintiff testified that Oslac showed her advertisements for pornographic films in Penthouse magazine, talked about sex, asked her to watch pornographic movies with him, and made lewd gestures, such as ones imitating masturbation. The court found that these and other acts was enough to constitute a hostile work environment based on sex. See Burns v. McGregor Electronic Industries, Inc., 955 F.2d 559 (8th Cir. 1992).

Therefore, demonstrating offensive or sexual gestures or facial expressions can also be used to demonstrate a hostile work environment based on sex.

O. Sexual moaning, sighing, barking or grunting noises.

Even sexual noises, grunting, moaning, or sighing can be evidence of a hostile work environment. In Sanchez, court concluded that a “[s]exual harassment and a hostile and offensive work environment still exist within the City of Miami Beach Police Department” in part based on the fact that a victim  was subjected to kissing, moaning, sighing and other disruptive noises transmitted over the police radio. Sanchez v. City of Miami Beach, 720 F. Supp. 974 (S.D. Fla. 1989).

In Miller, one of the harassers Stradley, the cook, continually made remarks about Mathews’ breasts, legs, and buttocks. Miller v. ZEE’S, INC., 31 F. Supp. 2d 792, 800-801 (D. Or. 1998) Stradley made grunting sounds and said how much he liked what he saw when she came to the pass through to pick up food. In addition, Stradley, made statements to Miller, another victim, about her breasts, legs, and buttocks and also made animal sounds around her as if to express an animal desire to have sex with her.

And in Harsco, a co-worker called the victim a “mother f* *ker” and would bark, grin, and moan at her. Harsco Corp. v. Renner, 475 F.3d 1179 (10th Cir. 2007). A co-worker stated that “he could still do [Ms. Renner] if [she] just pulled down [her] pants.” Ms. Renner also testified that another co-worker told her that if Ms. Renner “got laid,” then Ms. Renner would have a better attitude and not be as “picky” with the tanks. “And he said that when I was bent over the tanks, I was just in the right position for him,” Ms. Renner testified. The grunting, barking, and moaning persisted during this time. Based in part on this evidence, the court affirmed the jury’s finding of sexual harassment at trial.

Therefore, even grunting, barking, moaning, and sighing, or other noises that are sexual in nature can be used as evidence to make a claim for sexual harassment or a hostile work environment based on sex.

CONCLUSION

Contact Our Employment Attorney in Vancouver, Washington! We’re Ready to Help and Fight for You!