DEFENDING FLORIDA EMPLOYERS: OBJECTIVE EVIDENCE TO DEFEAT ALLEGED HOSTILE WORK ENVIRONMENT CLAIMS

An employee bringing a hostile work environment claim must show that the complained of conduct is sufficiently severe to claim unlawful discrimination under Title VII of the Civil Rights Act and the Florida Civil Rights Act. Generally, courts consider factors that include whether the incidents are frequent, severe, physically threatening or humiliating, and interfere with work. Peter Mavrick is a Fort Lauderdale employment attorney who has extensive experience with defending businesses and business owners against claims of sexual harassment.

It is unlawful under Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992 for covered employers (i.e., employers who have at least 15 employees) to discriminate in the workplace on the basis of sex, race, color, national origin, and religion. The United States Supreme Court’s precedent in Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986), first recognized that hostile work environment claims qualify as discrimination under Title VII in the seminal case. The Supreme Court explained that, “[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” Jurisprudence has since clarified what sorts of conduct is considered to be severe enough to qualify as a hostile work environment. While Title VII does not contain any requirement that discrimination be sufficiently severe to be actionable, the courts have interpreted this as an implicit requirement. The Supreme Court explained in the case of Faragher v. City of Boca Raton, 524 U.S. 775 (1998), that “simple teasing, offhand comments, and isolated incidents” do not qualify as a hostile work environment actionable under Title VII.

The United States Eleventh Circuit Court of Appeals, which is the federal appellate court governing federal cases arising in the State of Florida, discussed the degree of harassment which is necessary to sustain a claim of a hostile work environment its recent decision in Ortiz v. Sch. Bd. of Broward County, Florida, 780 Fed. Appx. 780 (11th Cir. 2019). The employee in Ortiz claimed that his supervisor harassed him concerning his race and national origin. The employee’s supervisor purportedly used racial slurs such as “spic” and “wetback” and openly made disparaging remarks concerning the work ethic of Puerto Ricans and racial minorities. The trial court entered summary judgment against the employee, finding that the supervisor’s comments about the employee’s ethnicity or national origin “were not frequent, sever, or threatening and did not affect [employee’s] job performance.” The employee appealed.

Ortiz recognized that the legal requirement that “the harassment be ‘severe or pervasive’ contains an objective and a subjective component.” Id. “Thus, to be actionable, this behavior must result in both an environment that a reasonable person would find hostile or abusive and an environment that the victim subjectively perceives to be abusive.” Id., citing to Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269 (11th Cir. 2002).

Ortiz evaluated the objective severity of the harassment, in which the court weighed “(1) the frequency of the 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 unreasonably interferes with the employee’s job performance.” Id; see Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (finding that “an environment is ‘hostile’ or ‘abusive’” should be evaluated considering these four factors).

Ortiz explained that “the objective element is not subject to mathematical precision” and is to be evaluated “in context and under the totality of the circumstances, and a weak or insubstantial showing with regard to one factor is not necessarily fatal to a plaintiff’s claim.” Id. To be actionable, “the conduct must be serious enough to alter to the terms and conditions of employment.” Id. citing to Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

Ortiz found that a jury could find that the harassment experienced by the employee was “objectively hostile to a reasonable person in his position.” Ortiz recognized that the employee’s allegations made the environment appear to be “permeated with discriminatory intimidation, ridicule, and insult” because he reported hearing disparaging comments nearly every day about Puerto Ricans and showed that other co-workers reported similar disparaging comments as well, though on a less frequent basis.

The appellate court also found the conduct to be severe under the second factor of the objective severity test. Ortiz found that “unambiguous ethnic slurs” “surely fall on the more severe end of the spectrum of comments.” The Eleventh Circuit’s decision explained that the severity is compounded because the employee’s supervisor had made the comments, rather than a co-worker.

Ortiz found that the environment was humiliating when weighing the third factor of the objective severity test because the comments were made publicly and were disparaging. Id; see also Hernandez v. Communications Unlimited of the S., Inc., CIV.A. 3:03CV0760T, 2005 WL 3803064 (M.D. Ala. Feb. 22, 2005) (“The fact that [the supervisor’s] comments would often occur in the presence of, and perhaps to entertain, [the employee’s] coworkers suggests that his conduct was intended to humiliate [the employee]”).

As for the fourth factor, whether the harassment affected the employee’s job duties, Ortiz found that the harassment did not significantly affect the employee’s job performance. Nevertheless, this was not fatal to a claim of a hostile work environment because the court considers the totality of the circumstances, and the other three factors weighed in favor of being objectively severe. Ortiz reversed the trial court’s summary judgment which permitted the employee an opportunity to potentially make his case before a jury.

While Ortiz found that the hostility of the work environment was objectively severe enough to qualify for Title VII protection, other courts have found that offensive racist remarks do not create a hostile work environment. This can occur if the severe disparaging remarks are not frequent enough. In Lawrence v. Wal-Mart Stores, Inc., 236 F. Supp. 2d 1314 (M.D. Fla. 2002), the

Supervisor’s two comments to African-American store employee, that employee should “remember how we did blacks in the thirties when they got out of hand… we would take them out back and lynch them,” and that he used guns like the one missing from the store “to shoot blacks,” although severe, were not frequent enough to alter the terms or conditions of employment, for purposes of Title VII claim for racially hostile work environment. See also Baker v. Alabama Dep’t of Public Safety, 296 F.Supp.2d 1299, 1309 (M.D.Ala.2003) (finding that computer image depicting plaintiff as an Arab terrorist was not sufficiently severe to create a hostile work environment).

Frequent racist comments that are not sufficiently severe or humiliating also do not qualify to create a hostile work environment. See Kosereis v. Rhode Island, 331 F.3d 207, 216 (1st Cir.2003) (concluding that statements referring to Turkish plaintiff as “turkey” and teasing him about his Turkish food, although frequent, were not sufficiently severe to support a hostile work environment claim).

An employee must show that the complained of conduct was sufficiently frequent, severe, or humiliating/threatening in a way that interfered with his work environment for him to successfully claim hostile work environment. If he cannot do so, then the employer has no liability.

Peter Mavrick is a Fort Lauderdale employment lawyer who defends businesses accused of employment discrimination. This article does not serve as a substitute for legal advice tailored to a particular situation.