Many employees think that crude, sexual comments in the workplace are automatically sexual harassment/hostile work environment. This is unfortunately not always the case. For example, a Ninth Circuit Court of Appeal decision filed on April 1, 2013, Westendorf v. West Coast Contractors, illustrates that sometimes a “crude” workplace is not a “hostile” workplace.

Due to the status of the case, the court had to accept as true that comments of a sexual nature by a male coworker and supervisor had occurred (e.g., the breasts of an employee were commented upon, sexual comments involving tampons were made, a female employee was told that she should wear a French maid’s costume, etc.). Further, it was acknowledged that the male employee had said “F-you” to the female employee several times during her employment, as well as stated that her job was “girly work”.

Even though all of the above was reported to and/or witnessed by management during her employment, the Court determined that the female employee was not “sexually harassed” because her workplace was not a “hostile work environment” as required by law to find sexual harassment. The Court stated that although they did not “condone” the remarks, they nonetheless found that the female employee only occasionally had to work with the male employees at issue and that the female’s actual work did not suffer.