The old axiom that “words can never harm me” may have been true at some point, but that is certainly no longer the case in this age of #MeToo. Words spoken today, especially if they are lewd, profane, sexually explicit, or a sexual innuendo, can and often do result in claims of sexual harassment. The potential legal liability for sex discrimination that attaches to such words has been a reality for a number of years. Most commonly it has been the creation or tolerance of a hostile work environment based upon sex that has led to charges and lawsuits. Today, however, it is the intense attention that has been focused on sexual assault and sexual misconduct in the workplace that has brought anything related to sex, including lewd or sexually explicit comments, to the forefront of employer’s legal concerns.
Virtually the entire world has been riveted by the almost daily account of some high-profile CEO, executive, Hollywood star, television talking head or politician being accused of sexual assault, or at a minimum unwanted sexual advances, by women who had the misfortune to interact with them. The fallout from the continuing revelations of sexual misconduct by persons that have long been admired has been to make the workplace ultra-sensitive to comments or remarks that have explicit or even implicit sexual content.