DEFENDING FLORIDA EMPLOYERS: SEXUAL HARASSMENT CLAIMS ASSERTING HOSTILE WORK ENVIRONMENT

Sexual harassment is a form of sex discrimination prohibited by the Florida Civil Rights Act and under the federal civil rights law referred to as Title VII, so that an employee may assert a claim for sexual harassment under section 760.10, Florida Statutes. Although neither the Florida nor the Federal Civil Rights Acts specifically mention sexual harassment, the United States Supreme Court in Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993), recognized that “[t]he phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive work environment.” Although Title VII’s prohibition of sex discrimination clearly includes sexual harassment, Supreme Court precedent Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), has held that Title VII is not a federal “civility code.” In Oncale, the Supreme Court stated that, “[w]e have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations.” Along this line, in Faraghar v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court explained its interpretation of TitleVII claims asserting a hostile work environment that, “[a] recurring point in these opinions is that ‘simple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’” In other words, “not all workplace conduct that may be described as ‘harassment’ affects a ‘term, condition, or privilege’ of employment within the meaning of Title VII.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). Peter Mavrick is a Miami employment attorney, who defends businesses and their owners against employment law claims asserting employment discrimination and retaliation as well as claims for overtime wages and other related claims. The Mavrick Law Firm also represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, and other legal disputes in federal and state courts and in arbitration.

In brief, hostile work environment cases are based on bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment. Businesses defending against such claims will objectively look at the facts in light of what case law requires to defend against the claims. Where harassment is perpetrated by a co-worker (as opposed to a supervisor or manager), to establish a hostile work environment sexual harassment claim, an employee must show that: (1) the employee is a member of a protected group; (2) the employee was subjected to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) the harassment was based on the sex of the employee; (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) that the employer knew or should have known about the harassment and took insufficient remedial action. Speedway v. SuperAmerica, LLC v. Dupont, 933 So.2d 75 (Fla. 5th DCA 2006). The United States Court of Appeals for the Eleventh Circuit in Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999), explained that in a sexual harassment lawsuit, courts consider four factors to objectively determine whether an alleged hostile environment is sufficiently severe and pervasive to alter the terms and conditions of employment: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct was physically threatening or humiliating; and (4) whether the conduct unreasonably interfered with the employee’s job performance. The Mendoza decision explained that the objective severity of the harassment must be judged from the perspective of a reasonable person in the plaintiff’s position, taking into consideration all the circumstances. For example, in Mendoza the Eleventh Circuit explained that “a single instance of a slight physical contact, one arguably inappropriate statement, and three instances of [a co-worker] making a sniffing sound[,]…over an eleven month period,” were “far too infrequent to alter conditions” under which the harassment victim was required to perform her job. Similarly, the United States Court of Appeals for the Tenth Circuit in Sprague v. Thorn Americas, Inc., 129 F.3d 1355 (10th Cir. 1997), held that five “sexually-oriented, offensive” statements over sixteen months was insufficient to show a hostile work environment, even though the offensive statement from one of the harassers occurred while he put his arm around plaintiff, looked down her dress. These cases, however, do not tell the whole story in an evolving area of law. Decisions of liability will depend on the fact pattern as well as the credibility of witnesses and other evidence.

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