California Obscene or Offensive Gestures Harassment Attorney

Obscene or Offensive Gestures: When Do They Constitute Sexual Harassment?

A city councilwoman for the Long Island, New York, community of Oyster Bay watched while a resident attending a public meeting in late June 2018 made an obscene hand gesture—and she didn’t let it fly.

“Excuse me, that’s disgusting,” council member Michele Johnson said, according to a Newsday article, as she observed an attendee making an offensive motion.

Johnson explained that she viewed the gesture as causing hostility in her workplace, and that she was not willing to tolerate that kind of sexual harassment. The resident was subsequently banned from attending future council meetings.

Unlike public meetings, most workplace incidents in which an employee makes an obscene or offensive gesture in an attempt to sexually harass another worker don’t make the news. But that doesn’t mean that gestures don’t constitute a form of harassment. They do. And, in many cases, obscene gestures are just one part of a pattern of sexual harassment that may include verbal abuse, requests for sexual favors, or even unwanted physical contact.

What Constitutes an Obscene or Offensive Gesture?

Specific offensive gestures can differ between countries and cultures, but most offenders will make it clear that they are making a sexually suggestive motion. These gestures don’t have to be made just with the hands; an offensive motion can involve other parts of the body. Here are some examples:

  • Using hand motions to suggest sexual acts
  • Simulating sexual touch or groping
  • Using the middle finger in a threatening or sexual way
  • Thrusting the hips
  • Licking lips or sticking out the tongue repeatedly
  • Leering, staring, or other suggestive expressions

Other gestures or actions can intimidate or harass you if they are clearly intended to do so.

How Do You Know if a Gesture Constitutes Sexual Harassment?

Victims of sexual harassment through obscene gestures may feel they are imagining ill intent or that the offender doesn’t mean to make others uncomfortable. No sexual gesture in the workplace, however, is appropriate, and the law may consider any of them as part of a pattern of harassment.

Sometimes an offender will excuse the behavior as funny or doesn’t realize the gesture offended anyone. However, a single gesture can still create a hostile work environment for you, just as it did for the councilwoman from Long Island. You may have a case for making a sexual harassment claim if the gesture was intended to convey a sexual message of any kind, whether the offender was “joking” or not.

While one-time actions may—depending on the circumstances—constitute inappropriate sexual behavior in the work environment, most offenders engage in repeated actions. California law very clearly considers continued gestures or motions that make you uncomfortable harassment. The perpetrator need not direct the gesture at you for you to feel harassed; the behavior may create an unsafe or hostile workplace even if it’s intended for another employee.

What Should You Do if You Experience Obscene or Offensive Gestures in the Workplace?

You don’t have to put up with or struggle under the burden of sexual harassment in the form of obscene or offensive gestures made by a coworker or manager at your office or work environment. Workplace harassment is illegal, and your company must address it or face potential legal consequences.

The best, first step for you to take is to locate an empathetic and experienced attorney who knows the ins and outs of California’s laws surrounding sexual harassment at work. If appropriate, your lawyer can take action for you to hold the offender—and your company, if applicable—responsible for the offending behavior.

If you have not already begun to document harassment in your office, do so right away. Keeping a written log of dates, times, people present, and details of the offensive behavior can help prove a claim of harassment in the future. It’s typically best to do this in a journal or other form that’s not a file on your company-issued computer or mobile device—and don’t store it at work. You don’t want your information compromised if company officials have access to it.

You may document the harassment with photos, audio, and video, but please see a lawyer first. California’s wiretapping law provides for two-party consent. Recording a conversation without the consent of all parties to a confidential communication—such as in a private office setting—could net you a $2,500 fine and one year of incarceration. Don’t incur charges of illegal recording, which could potentially take the heat off the person who is engaging in harassing behavior.

Should you go to your company’s human resources department? That’s another issue that a qualified attorney can assist you with—including the ideal approach considering the laws in your state or city. Remember that H.R. departments are often more concerned with doing the right thing for the company, not necessarily doing the right thing for you.

You don’t need to tackle sexual harassment in the workplace all alone. An experienced attorney can help you get the outcome you deserve when you encounter obscene or offensive gestures at work.

What Happens if You Decide to Pursue a Sexual Harassment Claim?

You could feel very stressed and uncomfortable about the harassment you’re receiving at work, but you may not know if pursuing a legal case is in your best interests. The right attorney can listen to your experiences and help you decide on the best path forward, including whether you should involve law enforcement and the courts.

Your lawyer can also help you decide what you want to achieve with a legal case—whether it’s discipline for the offender, steps to prevent future harassment in your company, or recovering damages for your emotional distress.

If you and your attorney decide to pursue a claim, there are no guarantees of success and the process can last a while. An experienced attorney can prepare your case for settlement negotiations or presentation to the court, and may resolve it in mediation. Your lawyer can, and should, explain each step of the process to you along the way.

Most attorneys who focus on sexual harassment claims offer free consultations so you can explore whether you have a case. But even before you think about a lawsuit, a qualified legal professional can help with support, documenting evidence effectively, and managing your options.

Remember that whatever the company does internally once you file a complaint will affect any civil case for sexual harassment that you may eventually bring. That is why it is so important to consult with an attorney before reporting the sexual harassment to management or H.R.