Locker Room Banter Will Get You Fired, and Oh, Wait, It’s Against the Law


By Amy Epstein Gluck

Everyone says it.

It’s just how guys talk.

They’re just words. I didn’t mean anything by it.

This is all in good fun, right?

No, no, and no.

They’re not “just words.” Sexually charged comments or “locker room banter” made by executives, an employee, or supervisor to another employee may subject an employer to liability under Title VII of the Civil Rights Act of 1964 if it rises to the level of sexual harassment and/or sex discrimination by creating a hostile work environment.

To constitute a hostile work environment, first, said locker room banter must be based on a protected characteristic, such as a person’s sex. So, if one of your employees is talking about forcibly kissing a woman or grabbing her genitals, are such comments based on her gender?

You bet.

Business Man Subtly Sexual Harassing The Business Woman

Second, the banter or comments must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive. It is conceivable that a reasonable person (i.e., one who is living and breathing) would consider a discussion about a male colleague grabbing her by the genitals and making out with her, whether she is married or not, to be severe, intimidating, offensive and abusive.

What other kind of comments or locker room banter could be considered harassment?

Well, according to the Equal Employment Opportunity Commission, the agency tasked with enforcing Title VII and other anti-discrimination laws, offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats of assaults, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.

Not only can the harasser be the victim’s colleague, customer, or supervisor, but you may not know that the victim does not have to be the person harassed. A person may be sexually harassed if (s)he is merely affected by the offensive conduct.

The Takeaway for Employers:

In one word—prevention. But if that does not suffice—correction.

It’s time to stop these frat boy antics, which becomes harmful vitriol in the workplace.

Here are some specific steps employers might take:

  1. Have a clear, no-tolerance sexual harassment policy set forth in your employee manuals and handbooks; ensure it is disseminated throughout your company, and understood;
  1. Have a specific procedure for investigating any claims of sexual harassment and follow it, documenting the process along the way;
  1. Train your employees and executives to be decent and mature human beings, i.e., train them on EEO policies, laws, and…that women are not sexual objects to be manhandled at their leisure;
  1. Encourage reporting of sexual harassment and convey that your company would not retaliate in any way against any person who reported sexual harassment; and
  1. Document extensively any employee’s claim of sexual harassment or sex discrimination as well as the steps you take to stop and prevent it.

While this may not stop all sexual harassment in your workplace, preventative and corrective action is likely to minimize your risk of liability.



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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.