Most people know sexual harassment is illegal – but fewer understand exactly what the law means by “unwelcome conduct.” Is a joke harassment? What about a compliment? A friendly text? The answer depends not just on what was said, but how it made you feel – and whether a reasonable person would also find it offensive.
In California, the rules have evolved. The law no longer turns a blind eye to “harmless flirting” or “just joking.” Courts, lawmakers, employers and employees now recognize that respect and boundaries are essential to a safe workplace. Here’s what “unwelcome conduct” really means under the law – and how California’s new rules of respect draw the line between appropriate and unlawful behavior.
The New Rules of Respect
The modern workplace looks very different than it did a decade ago. Conversations that used to be brushed off as “office banter” are now recognized as potentially harmful or discriminatory.
Why? Because California law has caught up with real experience.
Workers understand that “harmless jokes,” “nicknames,” or “compliments” can create environments where people – especially women and LGBTQ+ employees – feel objectified or unsafe.
So when does behavior cross that line?
When it becomes unwelcome or offensive.
What “Unwelcome Conduct” Means Under the Law
Both federal and California law prohibit sexual harassment, but California gives employees far stronger protections.
At the federal level, Title VII of the Civil Rights Act of 1964 (Title VII) bans harassment “because of sex.”
At the state level, California’s Fair Employment and Housing Act (FEHA) makes it unlawful for anyone – from a supervisor to a coworker or even a client – to engage in unwelcome sexual conduct that creates a hostile work environment.
Unwelcome Conduct = Behavior You Did Not Invite or Accept
In simple terms, “unwelcome conduct” means any sexual or gender-based behavior that you didn’t ask for, don’t want, or find inappropriate – whether or not you explicitly said “stop.”
You don’t have to say the words “I object.”
The courts look at context: your reactions, your tone, your avoidance, and the surrounding circumstances.
Example: A coworker makes repeated comments about your appearance. Even if you try to ignore it or change the subject instead of confronting them, the law still recognizes that the behavior was likely unwelcome.
How Courts Decide Whether Conduct Is “Unwelcome”
Courts use a two-part standard to decide whether workplace conduct is truly unwelcome:
- Subjective Standard – Did you personally find the behavior offensive or unwanted?
- Objective Standard – Would a reasonable person in your situation also find it offensive?
This approach balances your individual experience with broader social norms.
Even if the harasser claims “they didn’t mean it that way,” what matters is how the conduct was received – not what the person intended.
A Landmark Case: Meritor Savings Bank v. Vinson (1986)
This Supreme Court case first recognized sexual harassment as a violation of Title VII and made clear that “voluntary” participation doesn’t equal “welcome.”
The Court said that even if a victim didn’t object out loud or had prior interactions with the harasser, the key question is whether the conduct was truly unwelcome.
How California Expands These Protections
California’s FEHA goes further than federal law in several important ways:
- Covers employers with 5 or more employees (Title VII requires 15)
- Applies to employees, interns, job applicants, and independent contractors
- Bans harassment based on sex, gender, gender identity, gender expression, sexual orientation, pregnancy, or childbirth
- Holds employers strictly liable for a supervisor’s misconduct
- Recognizes that a single severe incident can violate the law
- Gives employees three years to file a complaint with the California Civil Rights Department (CRD)
FEHA also clarifies that sexual harassment does not require sexual desire – behavior that demeans, humiliates, or objectifies someone because of gender or sexuality can also be unlawful.
What Counts as “Offensive Conduct”
The phrase “offensive conduct” covers a wide range of behavior. It doesn’t have to be physical, explicit, or directed at a specific person.
Under California law, examples can include:
- Lewd jokes or sexual innuendos
- Comments about someone’s body or clothing
- Repeated requests for dates after being turned down
- Sharing sexually explicit images or videos
- Gender-based slurs or “locker room talk”
- Unwanted touching, hugging, or invasion of personal space
- Sending inappropriate texts, memes, or direct messages after work hours
Intent is not the standard – impact is. It doesn’t matter if the person “meant it as a joke.” If it made you uncomfortable or created a hostile environment, it may qualify as harassment.
The Role of Power and Context
One of the most important factors courts consider is power imbalance. When a supervisor, manager, or senior coworker engages in offensive conduct, it can carry more weight – even if the behavior seems subtle. Employees often feel pressured to tolerate inappropriate behavior for fear of losing opportunities or facing retaliation.
California law recognizes this dynamic. That’s why FEHA makes employers automatically liable for harassment by supervisors or managers.
Examples: When Conduct Crosses the Line
| Example | Might Be Acceptable If… | Becomes Unwelcome If… |
| A compliment | It’s about work or a neutral trait (“You handled that meeting well”) | It’s about appearance or repeated after discomfort |
| A joke | It’s general and doesn’t target anyone | It’s sexual, demeaning, or directed at one person |
| A text | It’s work-related or friendly | It’s suggestive, late at night, or continues after being ignored |
| A touch | A handshake | A hug, shoulder rub, or physical closeness without consent |
The difference often comes down to consent and context – not just the act itself.
The Modern Workplace: Digital Boundaries and New Norms
Today, “unwelcome conduct” isn’t limited to in-person interactions. Digital platforms like Slack, Zoom, social media platforms, and text messaging have created new spaces where harassment can occur.
- Sending flirty or explicit DMs after work hours
- Commenting on a coworker’s appearance on social media
- Making inappropriate jokes in group chats or video calls
These are all subject to the same legal standards as in-person conduct.
California courts and the CRD treat online and digital harassment as equally serious.
How Employers Must Prevent and Address Unwelcome Conduct
California employers are required by law (Gov. Code §§ 12950 & 12950.1) to:
- Have a written anti-harassment policy that explains what’s prohibited and how to report it
- Provide sexual harassment training every two years – 2 hours for supervisors, 1 hour for employees
- Investigate all complaints promptly and fairly
- Take corrective action if harassment occurs
- Protect employees from retaliation
Failing to do any of the above can make an employer legally liable – in some circumstances, even if they didn’t know the harassment was happening.
How Courts View “Reasonable Person” in Today’s Context
The “reasonable person” standard isn’t static – it evolves with society. Thirty years ago, some comments or jokes might have been dismissed as “harmless.” Today, courts recognize that a modern, diverse workforce expects mutual respect and professional boundaries.
Judges now consider:
- Gender identity and sexual orientation
- Cultural and social awareness
- Power differences and workplace hierarchies
- How harassment uniquely affects different communities
California’s laws are intentionally progressive, reflecting the idea that respect is not just cultural – it’s legally required.
What to Do If You Experience Unwelcome Conduct
If you’re dealing with behavior that feels inappropriate, here’s how to protect yourself:
- Trust your instincts. If it makes you uncomfortable, that’s enough.
- Document everything. Write down what happened, when, and who was present.
- Report internally. Tell HR, a supervisor, or the company owner in writing.
- Contact the CRD or the Equal Employment Opportunity Commission if nothing changes.
- Talk to an employment lawyer. Legal guidance can help protect your rights and stop retaliation before it starts.
Remember – you don’t need to suffer in silence or wait for things to “get worse.” One incident can be enough.
Takeaway: Respect Is the Standard
“Unwelcome conduct” isn’t about being overly sensitive or humorless – it’s about safety, dignity, and equality. California law gives workers the strongest protections in the nation because everyone deserves to work in an environment free from fear or humiliation.
If behavior in your workplace feels disrespectful or unwelcome, it probably is – and you have the right to speak up.
Protecting Workers Across California
At Matern Law Group, we’ve helped countless employees take back their power after experiencing harassment or retaliation. We know how hard it can be to navigate these situations – but you don’t have to do it alone.
If you believe you’ve been subjected to unwelcome or offensive conduct at work, call us at (855) 913-1134 for a free, confidential consultation.
Because respect isn’t optional – it’s the law.