DEFENDING FLORIDA EMPLOYERS ACCUSED OF SEXUAL HARASSMENT: ISOLATED INCIDENTS OF SEXUAL HARASSMENT ARE RARELY VIABLE CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT AND THE FLORIDA CIVIL RIGHTS ACT

An aggrieved employee suing his or her employer for “sexual harassment” must present evidence that his workplace is such a hostile and abusive work environment because of his or her sex that it alters the conditions of his employment. An aggrieved employee does not make an actionable claim if he or she has suffered only isolated instances of sexual harassment. Peter Mavrick, of the Mavrick Law Firm, is an employment lawyer who regularly defends businesses and management against employment discrimination accusations, claims, and lawsuits.

Title VII of the Civil Rights Act and the Florida Civil Rights Act (FCRA) bar discrimination against employees on the basis of sex. An employer likely has likely committed unlawful discrimination if it bases the decision to hire, fire, promote, or discipline an employee based upon the employee’s sex. However, an employee may also sue for sex discrimination if he or she is subject to a hostile work environment because of gender, which is a claim commonly called “sexual harassment.”

To prove a hostile work environment claim, an employee must show: (1) that he or she belongs to a protected group; (2) that he or she has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the harassment was based on his or her sex; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) a basis for holding the employer liable.

Civil rights laws do not allow employees to sue their employers unless sexual harassment is sufficiently pervasive as to alter the conditions of employment. This is a higher bar than what employers likely suspect in the “#metoo” era. “A hostile work environment claim under Title VII is established upon proof that ‘the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269 (11th Cir. 2002). “[I]solated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’” Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Case law is clear that a single instance of sexual harassment would be actionable only if it were severe, because only a severe incident could possibly affect the conditions of employment. See Uppal v. Hosp. Corp. of Am., 482 Fed. Appx. 394 (11th Cir. 2012).

While it may be unprofessional or unlawful under other laws, isolated instances of offensive sexual harassment are not necessarily violations of Title VII or the FCRA. On many occasions, courts have found that isolated incidences of sexual touches, sexual propositioning, sexual comments, and other objectively offensive conduct was not illegal under civil rights laws. An aggrieved employee generally does not state a cognizable claim of sexual harassment even when an employer actually acts upon a sexual urge and commits sexual battery against the employee. See, for example, Hockman v. Westward Commc’ns, LLC, 407 F.3d 317 (5th Cir. 2004) (one instance of grabbing or brushing plaintiff’s breasts and buttocks, slapping plaintiff on buttocks with newspaper, trying to kiss her, and commenting on another employee’s body over one and a half year period determined by court to be not “severe” conduct); Meriwether v. Caraustar Packaging Co., 326 F.3d 990, 992, 993 (8th Cir. 2003) (grabbing plaintiff’s buttock “with force” not actionable); Adusumilli v. City of Chicago, 164 F.3d 353 (7th Cir. 1998) (four isolated instances in which a co-worker touched the plaintiff’s arm, fingers or buttocks not actionable); Otu v. Papa John’s USA, Inc., 400 F.Supp.2d 1315 (N.D.Ga.2005) (attempting to hug and kiss plaintiff, brushing her breasts against plaintiff’s back, attempting to “rub his private parts,” unbuttoning her blouse determined by court to be not severe or pervasive); Evans v. Mobile Infirmary Med. Ctr., No. Civ.A. 04–0364–BH–C, 2005 WL 1840235 (S.D.Ala. 2005) (comments about the employee’s breasts, grabbing her buttocks on two occasions, touching her breast on one occasion determined by court to be not severe or pervasive); Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871 (5th Cir.1999) (affirming summary judgment in favor of employer when alleged harassing conduct occurred for approximately two years and included instances in which harasser rubbed plaintiff’s arm, asked her to sit on his lap, and tried to stare down her blouse); Fromm–Vane v. Lawnwood Med. Ctr., Inc., 995 F.Supp. 1471 (S.D.Fla.1997) (supervisor’s reference to size of employee’s husband’s penis, women’s breasts, and sexual exploits with his girlfriend and discussions regarding his visits to “whorehouses” was not sufficiently pervasive to form the basis of sexual harassment).A sex discrimination claim may be made if the sexual harassment is consistent and pervasive enough that it affects the conditions of the job itself. This can happen when there is a company culture that permits employees to make offensive sexual comments and display objectifying pornography. Asklar v. C.H. Robinson Worldwide, Inc., 06-22321-CIV, 2007 WL 7084789 (S.D. Fla. Oct. 24, 2007). It can also happen when offensive gender-specific language is used in the office. Anderson v. City of Fort Pierce, 14-14095-CIV, 2015 WL 10857439 (S.D. Fla. July 29, 2015) (Consistent use of gender-based derogatory terms, such as “whore,” “cunt,” “bitch,” or “slut” may create a hostile work environment).

Employers should always avoid creating a hostile work environment for their employees, but they need not be worried that isolated incidents of behavior or harassment will necessarily result in their employees successfully bringing sexual harassment claims against them. The employment litigation attorneys at the Mavrick Law Firm have successfully represented many businesses in employment law claims in the Miami-Dade, Broward, and Palm Beach Counties. This article is not a substitute for legal advice tailored to a particular situation.