DEFENDING FLORIDA EMPLOYERS: DEFEATING TITLE VII CLAIMS WHERE HARASSMENT IS NOT SUFFICIENTLY SEVERE

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Sexual harassment can constitute discrimination based on sex for purposes of Title VII. Mendoza v. Borden, Inc., 193 F.3d 1238 (11th Cir. 1999). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

Sexual harassment generally comes in the following two forms: harassment that does not result in a tangible employment action (typically referred to as “hostile work environment” harassment), and harassment that does result in a tangible employment action (typically referred to as “quid pro quo” harassment). Johnson v. Booker T. Washington Broadcasting Serv., Inc., 234 F.3d 501 (11th Cir. 2000). A plaintiff establishes a hostile work environment under Title VII upon proof that “discriminatory intimidation, ridicule, and insult [permeate the workplace in a manner] that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Jones v. UPS Ground Freight, 683 F.3d 1283 (11th Cir. 2012).

To estimate a prima facie case of hostile work environment, the employer must show that: (1) she “belongs to a protected group;” (2) she “has been subject to unwelcome sexual harassment;” (3) the harassment was “based on [her] sex;” (4) “the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment;” and (5) there is “a basis for holding the employer liable.” Mendoza v. Borden, Inc., 193 F.3d 1238 (11th Cir. 1999).

Title VII “does not prohibit all verbal or physical harassment in the workplace,” and “does not reach genuine but innocuous differences in the way men and women routinely interact with members of the same sex and of the opposite sex.” Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75 (1998). Instead, Title VII prohibits only the type of severe or pervasive sexual harassment that “alter[s] the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75 (1998). “Harassment is severe or pervasive for Title VII purposes only if it is both subjectively and objectively severe and pervasive.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798 (11th Cir. 2010). Thus, the environment must reasonably be perceived by the employee as hostile or abusive, and the harassment must result in “an environment that a reasonable person would find hostile or abusive.” Bryant v. Jones, 575 F.3d 1281 (11th Cir. 2009). When evaluating the objective component, the court examines the circumstances in totality, including: (1) the frequency of the discriminatory conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct reasonably interferes with an employee’s work performance. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269 (11th Cir. 2002).

The Eleventh Circuit emphasizes that Title VII does not serve as a “general civil code.” Guthrie v. Waffle House, Inc., 460 Fed. Appx. 803 (11th Cir. 2012). Consequently, an employer will not be held liable under Title VII when an employee is subject to “simple teasing . . . offhand comments, and isolated incidents (unless extremely serious)[.]” Guthrie v. Waffle House, Inc., 460 Fed. Appx. 803 (11th Cir. 2012). Moreover, an employer will not be held liable under Title VII for mere insults or rude and boorish behaviors. Faragher v. City of Boca Raton, 524 U.S. 775 (Fla. 1998). Any complaints attacking “the ordinary tribulations of the workplace, such as sporadic use of abusive language, gender-related jokes, and occasional teasing” will not succeed, as such conduct does not amount to a hostile work environment. Faragher v. City of Boca Raton, 524 U.S. 775 (Fla. 1998).

Conduct which may be offensive but is not sufficiently severe will fail to rise to the severe standard for hostile work environment claims, and the employer will not be held liable. For example, in Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287 (11th Cir. 2007), the court held that the following conduct was not sufficiently severe: a supervisor propositioning an employee at a company banquet and asking her to spend the night in his hotel room while on the drive home, cornering her in his office, and approaching her from behind several times at work while breathing down her neck. In Webb-Edwards v. Orange County Sheriff’s Office, 535 F.3d 1013 (11th Cir. 2008), the court held that the following conduct was not sufficiently severe: a supervisor’s comments that plaintiff would “be better if she’d wear tighter clothes,” “looked hot,” would get time off if she wore tighter clothes, and a comment to plaintiff’s husband about what the supervisor was sexually doing to his wife.

Peter Mavrick is a Fort Lauderdale employment lawyer, and represents clients in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.