If you have been anywhere near a TV, radio, computer, or even two cans tied to a string, you have heard about or seen Miley Cyrus’s performance at the VMA. Let’s dispense with the details about her performance. Miley Cyrus does not know how to twerk. If Miley Cyrus is your entire world of information about twerking then you may not know any better. Let’s talk a little about this supposed twerking before discussing how the same dance might create a claim for sexual harassment.
It’s just a twenty year old girl emulating something she saw in a club. It’s like the two white girls at the beginning of Sir-Mix-A-Lot’s “Baby Got Back” trying to twerk. It doesn’t work. There’s also plenty of criticism about how Miley Cyrus is poorly leaching black culture by poorly reinforcing stereotypes about black people. It would be like Soulja Boy deciding to be “more white” by moving into a trailer and referring to himself as “white trash”. But hey, let’s get this blog back on track talking about something about the law. Specifically, let’s get back talking about employment law.
It’s going to happen somewhere, so let me say it: you should not twerk at work unless you are a professional performer. Strippers: you can twerk all you want. Everybody else: working is not for twerking.
Sexual harassment claims in Texas
In addition to violating your employer’s workplace behavior policies, twerking can also expose you to sexual harassment claims. The men–and other women–in the office could find your little dance offensive. They could report you to HR or management. Your boss may not fire you but you could sour your career. If you decide to rub up on another employee, that could be enough to end your job.
For example, a recent lawsuit settled in Oregon for $585,000 involved a doctor repeatedly sexually harassing colleagues including forcibly rubbing himself on them. In this case the employee engaged in a pattern of sexual assault and harassment but there does not always need to be multiple events to create a sexual harassment claim under federal law or Texas law.
Even a single act of unwelcome, offensive touching can create a sexual harassment claim. Twerking might be unwelcome and offensive enough. Remember, you can offend more than the person you are touching or the people you think are watching. Other employees might see and report your conduct as sexually offensive.
Federal and Texas courts tend to agree when it comes to intentional physical, sexual contact that is generally enough to create a sexual harassment claim.
Can watching videos at work constitute sexual harassment?
On the other hand, you don’t have to twerk to get yourself in trouble. Watching twerking videos at work can be enough to offend your co-workers. Just watching that Miley Cyrus video to see what everybody is talking about could be a problem. Talking about twerking or Cyrus’ performance can be offensive enough to constitute a complaint for sexual harassment under federal and state law. Especially if you are being particularly descriptive or vulgar in your discussion.
Can tiktok videos create sexual harassment claims?
In today’s workplace internet access at work is common whether it is on your computer or your personal device. It is easy to hop on a video or photo sharing app or website and get yourself in trouble. Five years ago we might worry about youtube or vimeo videos but tiktok is now the most visited destination on the internet. Tiktok is full of content at least as questionably inappropriate as the VMA video. Scrolling those short videos at work, especially if you discuss or show them to coworkers, brings that content into the workplace.
In these situations the law is not always black and white but there is a long history of sexual harassment cases involving video in the workplace. A quick search online can turn up courts agreeing that even a minimal presence of sexual video can be enough. These cases usually deal with porn at work but there is content on Tiktok not particularly far off.
Legal questions arise whether the easy access to video sharing sites and apps changes our context of what is offensive in the workplace but today the line is usually not drawn in favor of those sharing this type of content in the workplace.
Best practice is to avoid this content altogether in the workplace. Certainly your employer would prefer you spend time working and not risking sexual harassment claims. Do you really need to share videos or tiktoks at work? Probably not. Do you want to risk your job over it? Probably not.
What should I do if I feel sexually harassed at work?
Sexual harassment is a serious problem in the workplace and one that is not going away any time soon. If you believe you were sexually harassed at work then you should contact an employment attorney right away. That is true whether a person at work sexually touched you or whether you feel uncomfortable about sexual content or behavior. You may have a sexual harassment or sex discrimination claim to pursue.
Even if there is not a legal claim to pursue you may want to avoid a bad situation at work. An experienced employment attorney can review the facts and give you options. Practical solutions may be a better fit than a legal solution in some cases. If you have a sexual assault or sexual harassment claim then your attorney can best advise you how to protect your claim and protect yourself.
