Flirting at work can be common, but when does it cross the line into harassment? Harassment can take on many different forms. While it is most identifiable as physical touch, the range of harassment makes it difficult to differentiate unproblematic behaviour and harassment. Workplace relationships and friendliness can blur boundaries. This makes it difficult to understand when friends push the line of workplace colleagues to harass. This blog will highlight when persistent flirting becomes sexual harassment and what counts as sexual harassment under California and federal law.
II. Understanding Sexual Harassment
Many people assume sexual harassment only occurs when someone is touched inappropriately. However, both federal and state laws define sexual harassment much more broadly, encompassing a wide range of behaviors.
Title VII of the Civil Rights Act of 1964 was enacted by Congress to prohibit employment discrimination based on race, color, religion, sex, and national origin — known as protected classes. This federal law makes it unlawful to discriminate in any aspect of employment, including hiring, firing, compensation, or promotions, and also prohibits retaliation against individuals who report discrimination or participate in investigations.
Under Title VII, sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, or other verbal, visual, or physical conduct of a sexual nature that creates a hostile or abusive work environment. Because it falls under the category of sex discrimination, this conduct is illegal under federal law.
In California, the Fair Employment and Housing Act (FEHA) provides similar but broader protections. Enacted in 1959, FEHA prohibits employment discrimination based on protected characteristics such as race, sex, age, disability, and sexual orientation. Under this law, sexual harassment includes any unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature that affects a person’s employment. Unlike some federal standards, FEHA applies to all employers, both public and private.
The two most common types of workplace sexual harassment are Quid Pro Quo Harassment and Hostile Work Environment Harassment. While harassment can take many forms, understanding these two primary categories helps employees recognize and address inappropriate conduct when it occurs.
III. Flirting vs. Harassment: What’s the Difference?
When contemplating what counts as sexual harassment, it is important to identify some qualities of harmless consensual flirting and unwelcome flirting. Consensual flirting is mutual, and both parties are clearly comfortable with the friendly interactions. It is important to ensure that the intent of the flirting is harmless and that no boundaries between the parties are crossed.
The line between flirting and harassment occurs when the comments become unwelcome. This can happen if one person repeatedly flirts or makes advances despite clear signs of discomfort or refusal. Intent is not typically considered in court in harassment cases, so if a coworker is crossing this line but says that their intent was friendly in court, it often will not be considered if the actions caused harm to the survivor.
Factors that make flirting harassment:
One-sided or unwanted attention
Consensual flirting can turn into harassment when one person becomes unresponsive, and the attention continues despite their lack of interest. In these situations, it’s important for everyone to be mindful of body language and social cues — if the person you’re speaking with becomes noticeably uncomfortable, distant, or quiet, it may be a sign that your behavior is unwelcome and should stop.
Frequency and persistence despite rejection.
A common indicator in courts for harassment is frequency and persistence. If a coworker or colleague makes a single comment that came off wrong, and they apologize for the comment and it never happens again, that would not be considered harassment. However, if they make continuous and persistent comments despite being rejected or clearly making the other party uncomfortable, then this would be harassment.
Power imbalance
In many cases, harassment comes from a supervisor who has significant control over an employee’s work life, making it easier to target the employee and pressure them into compliance out of fear of retaliation. However, power imbalances aren’t limited to management roles — employees at the same level can also gain influence in workplace dynamics, creating situations where harassment or intimidation can still occur.
Behavior that affects the victim’s ability to work comfortably.
Consistent and unwelcome behavior that negatively affects an employee’s ability to work comfortably and effectively can constitute harassment. While the intention may be friendly, the negative implications of not being able to complete one’s work to their full potential can draw a clear line between flirting and harassment. This can lead to the survivor receiving poor performance reviews, not showing up to scheduled shifts, or a lack of focus on their work tasks.
Examples of When Persistent Flirting Becomes Harassment
Continually asking a coworker out after they’ve said no.
Behaviour like this constitutes harassment due to the persistent behaviour of continuously asking out a coworker despite their previous rejections. This type of repeated behavior can make the targeted employee feel uncomfortable, anxious, or even unsafe in their work environment — especially if the person asking is in a position of power or sees the coworker daily. Over time, this can contribute to a hostile work environment, which is one of the legal standards used to define sexual harassment under both federal and California law.
Making sexual jokes or compliments about someone’s body.
Sexual jokes or comments regarding someone’s body are definitive grounds for harassment. Intent is not considered in harassment law cases, and therefore, the nature of a joke is not typically considered, but is rather considered simply as harassment. Furthermore, comments about someone’s body is a blatant disrespect of boundaries consistent with a professional work palace.
Sending romantic or suggestive messages during work hours.
When messages are sent through work email, workplace chat apps, or during paid hours, they are considered part of the professional environment. Even if the sender claims it’s “just flirting,” the workplace is not a personal or private setting. Employees have the right to focus on their job without being subjected to sexual or romantic attention. Furthermore, messages during work hours can cross the line into harassment rather than harmless flirting when the messages are unwanted, inappropriate for the workplace, or make the recipient uncomfortable.
Following someone around or finding reasons to be physically close.
Flirting is considered 2 sided, whereas harassment is one-sided. Harassment can be perpetuated by following a coworker or finding excuses to be physically close to them. This can be extremely uncomfortable for employees who need to be in specific physical locations to properly conduct their jobs, and harassment like this can make it difficult for employees to fulfill their job duties to their fullest extent when they are focused on the proximity of a harasser.
Giving unwanted gifts or touching under the guise of affection.
Gift giving can be a confusing boundary for employees to navigate. While one does not want to deny a gift from a colleague, especially if they are a supervisor, these gifts and attention can be a form of quid-pro-quo harassment, in which sexual acts may be traded for benefits, like gifts. This can also be in a hostile work environment in which gift giving may cross a boundary between friendly and too personal for a professional work relationship.
The Role of Intent vs. Impact
In legal cases, the intent of the harasser is typically not considered. Therefore, using the claim “I didn’t mean to offend” does not excuse the inappropriate behaviour. In many cases of harassment, it is made clear to the harasser that the conduct is not accepted through verbal communication or even body language. Therefore, its persistence despite rejection from the survivor is definitive grounds for harassment, despite claimed intent.
It is also important to recognize the impact of the harassment on the survivor when dealing with cases that question the grounds for harassment. In many states, harassment can be anything that makes working conditions harder or unfavorable for the employee. Therefore, if an employee continues to act in an unprofessional manner that directly causes the other employee to not work to their best abilities, then this can be grounds for a harassment case. The focus of the case is on how the recipient feels, not what the harasser intended to be flirting. Even if meant playfully, repeated unwanted attention can create discomfort or fear.
What To Do If You’re Experiencing Persistent Flirting
- Set boundaries: Clearly state that the behavior is unwelcome. By doing so, employees can protect themselves from further harassment as well as provide evidence in potential future legal cases stating that the harasser was aware that their behavior was unwelcome.
- Document incidents: Keep records of dates, times, and details. By taking accurate documentation of all events of harassment, survivors can ensure that misinformation or denial of events does not sabotage their potential legal case. Documentation can also be done to strengthen an HR complaint and prevent a company from ignoring claims of harassment due to limited proof.
- Report it: Notify HR, a manager, or the company’s compliance hotline. By reporting company staff about instances of harassment within the workplace, survivors are allowing the company to make swift decisions and actions to protect their employees from current harassers, as well as protect employees from future harassment. In strong workplace harassment legal cases, the company was aware of the harassment by complaints filed to HR and continued to allow the harassment to continue.
- Seek support: Legal advice or counseling if the behavior continues or escalates. By employing an employment attorney, survivors can ensure that their case is being handled with the utmost respect and attention to the details of the law. This can take the stress off the survivor to handle the case by themselves, and focus more on healing from the incident of harassment.
- Know your rights: Retaliation for reporting harassment is illegal. This means that a company cannot punish an employee for reporting harassment in any capacity. While many companies in California are considered “at-will”, meaning a company can fire an employee whenever, and without providing a reason, it is still illegal for employers to terminate an employee for filing a complaint because it is considered a protected activity. These are actions that employees can take that cannot be punished by an employer for participating in.
Healthy workplace interactions are built on mutual respect, and that includes knowing when boundaries are being crossed. Persistent, unwanted flirting is not harmless — when one person continues after the other has shown discomfort or disinterest, it can become a form of sexual harassment. Employees should feel empowered to speak up, set clear boundaries, and advocate for a work environment where everyone feels safe, respected, and free from unwanted attention.
By Brooke Lum
