Pornography is ubiquitous. Even if someone doesn’t want to look at it, it shows up in emails, popups, malware, and all sorts of places it’s not wanted. In the workplace, however, people view it on their work computers, on their phones, or in print format all the time. Depending on the sampling technique and the gender of the employees in question, somewhere between 3 percent and 7 percent of all employees view pornography of various kinds while at work.
Pornography can be considered contributory to a hostile work environment, which is disallowed under Title VII of the Civil Rights Act of 1964. It doesn’t matter what kind of pornography it is. If someone sees it who didn’t want to see it, and that person feels uncomfortable, threatened, or even just revolted by it, then sexual harassment has occurred under the definitions of the law.
In fact, a famous case, Employment Equal Opportunity Commission of the United States v. Protocol of Amherst Inc., stipulated that the employer is liable not only for punitive damages regarding either the pornography shown or any retaliation toward employees for reporting it, but also back pay and compensation for the mental hurt inflicted by both the pornography and the retaliation. Further, the company was required to redraft its policies and procedures to prevent such behavior and its aftermath in the future.
Granted, the boss of Protocol was guilty of multiple acts of sexual harassment other than simply showing pornography, but the principle is the same. Some of the other sexual harassment offenses included:
- Unwelcome touching
- Unwelcome “brush-ups”
- Unwelcome sexual comments
- Unwelcome touching and grabbing
- Unwelcome kissing
Obviously, all of these, and not just the pornography, were serious offenses, and the United States District Court for the Western District of New York dealt swiftly with that boss and the company.
Many times, people share pornographic images and videos through a social medium like Snapchat where the senders are unaware that the popular app does not actually delete them. More adventurous types sometimes send blatant photos through a work-based chat system or even through email itself. If anyone sees these photos as they wend their way across the web and feels negatively in any way, then that is sexual harassment against that person no matter the intent of the sender.
The offensive material doesn’t have to be online, however. Many of us remember the calendars hanging in the local car repair shop or the posters hung on the walls of college dorms. In the world of the 21st century, things that were considered “harmless” or the domain of “boys will be boys” in the days of yore are no longer tolerated, and it’s perfectly all right for someone to feel uncomfortable around such photos no matter that person’s gender.
Many men, for example, fear reprisals, teasing, or worse from their fellow employees if they complain about something that’s part of the “old boys’ club.” Women routinely convince themselves that such things are “no big deal” to avoid the possibility of retaliation. In many cases, people who are transgender, nonbinary, ace, or any other member of the LGBTQ+ community don’t even know if they qualify as true victims. They do. In all cases, an attorney whose focus is sexual harassment law, or even employment law, can be a strong ally in someone’s quest to seek justice.
Aside from the EEOC, the New York State Division of Human Rights and the New York City Commission on Human Rights can also help victims who report pornographic harassment. Also, the New York State Supreme Court is there for those times when filing suit is the best option. In any case, we are ready to help you in any legal way we can. We provide free initial consultations, so give us a call or drop by the office today to book an appointment.