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“Victims of sexual harassment on the job shouldn’t hesitate to find justice. My number one goal is to listen and provide you guidance on the legal options available to you, all while respecting your confidentiality. Please do not hesitate to contact me to discuss your personal story. Hablo español.”

The Fourth Circuit Court of Appeals in Ray v. International Paper Company, released on November 28, 2018, overturned a lower federal court’s decision to dismiss Tamika Ray’s sexual harassment, hostile work environment, and retaliation claims against her employer, International Paper Company, for lack of sufficient evidence to support her claims. The FourthCircuit found Ms. Ray had presented sufficient evidence to survive summary judgment and to allow a jury to decide her claims.

Tamika Ray worked as a “bundler’ and then promoted to the position of “operator” at International Paper Company, which manufactures and distributes packaging boxes. Johnnie McDowell was Ms. Ray’s supervisor in both positions. One year after Ms. Ray began working, Mr. McDowell started asking Ms. Ray to engage in sexual activity and offered her money in exchange for those sexual acts, in addition to making several overtly sexual comments to her. On one occasion, he grabbed her thigh while the two were alone in his office. Several years after the conduct began, Ms. Ray reported it to two other supervisors, but asked that they not report to higher authorities for fear of retaliation. When Mr. McDowell found out that Ms. Ray had complained about his conduct, he informed Ms. Ray that she could no longer perform voluntary overtime work before the beginning of her shifts, for which she would get paid time and half. This voluntary overtime work represented a significant portion of her income.

When a supervisor, such as Johnnie McDowell, is the harasser and the harassment culminates in a “tangible employment action,” an employer like International Paper Company is strictly liable. Tamika Ray had to show that action taken against her was “tangible,” by demonstrating

that any action taken against her was ‘tangible,’ such that the action constituted a ‘significant change in employment status,’ and that there was ‘some nexus’ between the harassment and the tangible action taken.”

The Fourth Circuit held that the opportunity to work voluntary overtime that was taken away from her could constitute a tangible employment action. The Court also recognized that Mr. McDowell was responsible for the decision to eliminate Ms. Ray’s voluntary overtime work, creating a sufficient nexus between the ongoing harassment and the decision to deny voluntary overtime work. The Seventh Circuit overturned the lower court’s decision, which had dismissed Ms. Ray’s claim because of lack of sufficient evidence that the harassment culminated in a tangible employment action.

As to Ms. Ray’s retaliation claim, the Fourth Circuit also held that she had sufficient evidence to show that she suffered an adverse employment action after having reported the harassment to other supervisors, and that a jury reasonably could determine that Mr. McDowell retaliated against Ms. Ray after learning she had complained about him to other supervisors. Thus, there was enough evidence for a jury to reasonably find that International Paper Company was strictly liable for Mr. McDowell’s acts.

If you have been the victim of workplace sexual harassment perpetrated by a supervisor, and have experienced retaliation for reporting the misconduct, you should discuss your story with an attorney who can advise you of your legal rights. Please let us know if we can help.

 

Si usted tiene una demanda de acoso sexual laboral, lo que usted reporta inicialmente a la Comisión de Igualdad de Oportunidades de Empleo (Equal Employment Opportunity Commission en inglés), y cómo lo reporta, puede afectar su demanda legal en las cortes.

Antes de interponer una demanda de acoso sexual laboral en contra de su empleador bajo el Título VII de las leyes de Estados Unidos, la vícitma debe de primero presentar cargos con el EEOC (siglas en Inglés para la Comisión de Igualdad de Oportunidades de Empleo). El EEOC entonces emite una notificación llamada “derecho a demandar,” la cual le permite a la víctima interponer su demanda en las cortes.

En la reciente opinión en el caso Little v. CRSA emitida el 15 de Agosto del 2018 por el Décimo Primer Circuito de la Corte Federal de los Estados Unidos, la Corte decidió que la demanda de acoso sexual de Sybil Little estaría limitada sólo a los cargos que ella presentó anteriormente con el EEOC, y afirmó la decisión de la corte del distrito, la cual desestimó la demanda federal de Sybil Little en su totalidad.

Sybil Little estuvo empleada desde el 2006 como Técnica y Coordinadora de Seguridad de la compañía CRSA en Fort Rucker, Alabama. En su demanda en la corte federal, Sybil Little alegó que ella había sido víctima de continuos acosos sexuales de parte de Jason Patrick, el Director de Operaciones de CRSA, y de Ricky Norris, Jefe de Técnincos de CRSA. Ella alegó que Patrick le propuso tener relaciones sexuales y que Norris le hizo comentarios sobre su cuerpo y apariencia personal, y la motivó a que usara vestidos y tacones para que él puediera verla trepar por la escalera.

El principal error de Sybil Little al presentar su demanda en la corte federal fue que ella sólo incluyo en su cargo con el EEOC la alegada discriminación sexual de parte de Norris, y no la de Patrick, y tampoco incluyó en su demanda con el EEOC ningún alegato de discriminación sexual en contra de su empleador, CRSA.

La decisión del Décimo Primer Circuito detalla lo siguiente:

Las demandas ante el EEOC no se interpretan de manera estricta, y la demandas judiciales son permitidas sólo si las mismas amplian, aclaran, o se enfocan con más detalles en las alegaciones presentadas antes el EEOC. En el caso de Sybil Little, las alegaciones de su demada federal no podían aclarar alegatos que ella no incluyó en su demanda ante el EEOC.”

Bajo el Título VII de las leyes de los Estados Unidos, un reclamo de acoso sexual no se puede mantener en contra de personas naturales como Norris y Patrick, sólo en contra de empleadores como CRSA. Basado en el único alegato de conducta indebida de parte de Norris, CRSA pudiera haber sido responsable bajo el Título VII si Norris hubiera sido un supervisor inmediato de Little, lo cual haría a CRSA responsable subsidiaria por la conducta de su empleado. CRSA también pudiera haber sido responsable subsidiaria si hubiese sabido o debía de haber sabido sobre la conducta de acoso sexual de su empleado, y no hubiese tomado medidas correctivas con relación a ésta conducta. Little, sin embargo, no inluyó en su demanda ningún alegato estableciendo que Norris era su superior, ni tampoco incluyó alegaciones de que ella reportó la conducta indebida de Norris a sus directores o al departamento de Recusos Humanos. Las meras alegaciones de Little de que Norris le hizo comentarios ofensivos no son suficientes para demostrar que la dirección de CRSA sabía o debió de haber sabido del acoso sexual.

Si usted ha sido víctima de acoso sexual en su lugar de empledo, usted debe de hablar de éste asunto con un abogado especializado en este tipo de leyes, él cual lo puede guiar en todos los aspectos necesarios para poder reclamar sus derechos, desde el presentar un cargo con el EEOC hasta radicar la demanda en las cortes estatales o federales.

A Florida appellate court reversed a lower trial court’s decision to summarily dispose of a guidance counselor’s workplace sexual harassment claim against the Broward County School Board for the conduct of the principal of the school where she worked. The lower court had ruled that Cherellda Branch-McKenzie, the guidance counselor, did not provide evidence to support her claim sufficient for proceeding to trial.

The Fourth District disagreed with the lower court in Branch-McKenzie v. Broward County School Board, released on September 12, 2018.

Cherellda Branch-McKenzie worked as a guidance counselor at Riverland Elementary where Oslay Gil was the principal. Among the inappropriate conduct alleged to have happened, Mr. Gil placed his fingers on Ms. Branch-McKenzie’s lips if he thought she was talking too loud and told her “Girl, you look good. I sure would like to see what that’s like. I know I can have THAT!” Another incident involved him touching her on the neck and saying, “come on, let me kiss you right there.” When Ms. Branch-McKenzie said “no,” he said next time he would not ask, he would just do it. Mr. Gil also inappropriately touched her buttocks on multiple occasions, and on one occasion stated, “oh, I’m sorry, but it felt good.” These incidents would sometimes happen in front of co-workers, like the time when Mr. Gil touched her back and hair, and then told a co-worker who saw the exchange that Ms. Branch-McKenzie was “like a mango…you can’t have just one.” It came to a point where Ms. Branch-McKenzie would ask a co-worker not to leave her alone with Mr. Gil. Several other co-workers provided testimony of other incidents where they observed Mr. Gil’s inappropriate conduct and comments towards Ms. Branch-McKenzie.

One of the elements of a hostile work environment claim is that “the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment.” Despite Ms. Branch-McKenzie’s testimony and the testimony of co-workers corroborating her claims, the lower court ruled that the evidence did not show that Mr. Gil’s conduct was pervasive enough to support a hostile work environment claim because after Ms. Branch-McKenzie reported the conduct to the School Board’s Equal Employment Opportunity office, Mr. Gil’s conduct stopped, although she testified it was because she made a point of avoiding him.

In order to determine whether offensive conduct is pervasive enough, four factors are considered: “(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 Fourth District Court of Appeal engaged in a fact-intensive analysis of these factors and held that Ms. Branch-McKenzie came forward with sufficient evidence as to all four factors to support a hostile work environment sexual harassment claim. The appellate court reversed the lower court’s order disposing of her claim, thereby allowing the claim against the School Board for the conduct of Mr. Gil to proceed to trial.

If you have been the victim of workplace sexual harassment, you should discuss your story with an attorney who can guide you at the lower court level and appellate court level. Please let us know if we can help.

If you have a claim for workplace sexual harassment, what is initially reported to the Equal Employment Opportunity Commission (“EEOC”), and how it’s reported, may affect your legal claim in court.

Before filing a lawsuit based on workplace sexual harassment against an employer under Title VII, a victim is required to file a charge with the EEOC. The EEOC then issues a “right to sue” notice, which allows the victim to file his/her claim in court.

In the recent case of Little v. CRSA, released by the Eleventh Circuit on August 15, 2018, the Court held that Sybil Little’s sexual harassment claim was limited by the scope of her EEOC charge, and affirmed the district court’s dismissal of her complaint.

Since 2006, Sybil Little had been employed as a technician and safety coordinator at CRSA in Fort Rucker, Alabama. She alleged in her federal court action that she was the victim of continuing sexual harassment by Jason Patrick, CRSA’s Operations Manager, and Ricky Norris, CRSA’s Lead Technician. She alleged that Patrick propositioned her for sex and that Norris commented on her body and appearance and encouraged her to wear dresses and heels so that he could watch her climb a ladder.

Sybil Little’s mistake was to only include in her EEOC charge the alleged discrimination carried out by Norris, but not by Patrick and, more importantly, she failed to include any allegations about her employer, CRSA.

The Eleventh Circuit opinion pointed out that

EEOC complaints are not strictly interpreted, and judicial claims are allowed if they amplify, clarify, or more clearly focus the allegations in the EEOC charge. But, Little’s allegations could not clarify what was not in her EEOC charge.”

Under Title VII, a claim cannot be maintained against individuals like Norris and Patrick, only against employers like CRSA. Based on the only alleged misconduct by Norris, CRSA would be held liable if Norris was alleged to be a supervisor with immediate or successively higher authority over Little, which then would make CRSA vicariously liable. CRSA could be also held directly liable if it knew or should have known of the harassing conduct but failed to take prompt remedial action. Little, however, plead no facts that Norris was anything other than a co-employee, and Little did not set forth any allegations that she told management about Norris’s misconduct. Her mere allegations that Norris made offensive comments were not enough to show that CRSA management should have known of the harassment.

If you have been the victim of workplace sexual harassment, you should discuss your story with an attorney who can guide you in all the steps necessary to properly assert your legal claim, from filing a EEOC charge through handling litigation in court.

If you have been experiencing persistent workplace sexual harassment for a long time, perhaps for months or even years, you may think it is too late to report the wrongdoing, but a recent federal case from the Third Circuit Court of Appeals, citing news regarding “a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by the victims,” held that whether waiting too long to report the workplace sexual misconduct was reasonable depends on your circumstances.

In the case of Minarsky v. Susquehanna County, released by the Third Circuit on July 3, 2018, the Court held that Sheri Minarsky’s four-year delay in notifying her employer, Susquehanna County, of sexual advances made by her immediate supervisor, Thomas Yadlosky, was not unreasonable as a matter of law. The district court below had granted summary judgment to Susquehanna County under the Faragher-Ellerth defense. This defense is available to an employer who can show it “exercised reasonable care to avoid harassment and to eliminate it when it might occur,” and that the employee “failed to act with like reasonable care to take advantage of the employer’s safeguards and otherwise prevent harm that could have been avoided.” The Third Circuit appellate court reversed the summary judgment, holding that a jury should decide whether Minarsky’s delay in reporting the harassment was unreasonable.

Why a Victim Might Wait a Long Time to Report a Supervisor’s Sexual Harassment

Sheri Minarsky worked as a part-time secretary three days a week at the Susquehanna County Department of Veteran Affairs, and worked for Thomas Yadlosky only on Fridays in an area far from other employees. Soon after she started working for him in 2009, Yadlosky would sexually harass Minarsky nearly every week by approaching her from behind and embracing or pulling her up against him, massaging her shoulders or touching her face, and attempting to kiss her on the lips before he left each Friday. Because they worked alone, others were seldom present to observe Yadlosky’s conduct, other than during the holiday season each year, when Yadlosky asked Minarsky and other female employees to kiss him under the mistletoe. Yadlosky would also question Minarsky about her whereabouts during her lunch hour, called her at home on her days off under the pretense of work, but proceeded to ask her personal questions, and sent her sexually explicit messages from his work email to her work email. Notably, Yadlosky would become hostile if she avoided answering his calls, and otherwise behaved unpredictably.

The harassment intensified as time passed. Minarsky stated in the lawsuit that she did not report the harassment sooner because she needed the job to pay for her young daughter’s cancer treatments. Minarsky claimed that Yadlosky knew her daughter was ill and that Minarsky depended on her job to pay medical bills. Also, Minarsky did not report the harassment sooner because she learned that prior complaints by others about Yadlosky’s behavior had not led to any substantive reprimand. Minarsky thought her complaint would do nothing to change her situation, and that she could lose her job by reporting the harassment.

The Third Circuit Court specifically acknowledged that

[T]here may be a certain fallacy that underlies the notion that reporting sexual misconduct will end it. Victims do not always view it in this way. Instead they anticipate negative consequences or fear that the harassers will face no reprimand; thus more often than not, victims choose not to report the harassment.”

Although in the past the law has viewed an employee’s outright failure to report persistent sexual harassment as being unreasonable and insufficient to support a legal claim, particularly where the opportunity to make such complaints exist, the Third Circuit clarified in Minarsky v. Susquehanna County that a mere failure to report one’s harassment is not per se unreasonable. The passage of time can be one factor while analyzing several other factors. Because workplace sexual harassment is highly circumstance-specific, it is a question for the jury, not the judge, to determine whether the employee’s subjective belief of potential retaliation from reporting harassment is well-founded.

Sheri Minarsky’s case is an example of how the law is being shaped by so many victims coming forward in the #metoo Movement, allowing victims more opportunities to seek redress for inexcusable conduct. As Judge Rendell put it, this appeal came in the midst of “a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by the victims.” If you feel trapped in an uncomfortable employment situation, but think you are too late in remedying workplace sexual harassment, you should speak to an attorney who can guide you in making a change. We are here to listen and help.

You may have a situation where not only you have been the victim of sexual harassment in the workplace, but your coworkers may also have had other negative experiences with the same employer. Can all of you jointly sue the employer for workplace sexual harassment in what is called a class action or collective action?

It depends. If you and your coworkers each have an employment contract with the offending employer, the fine print may contain an arbitration clause that prohibits bringing a class action against your employer. What does having an arbitration clause mean? It means that any dispute you have with your employer must be resolved one-on-one in a private setting by a neutral arbitrator or panel of arbitrators. The arbitrator(s) may be selected by your employer or jointly by you and the employer from a list of arbitrators. You may have given up the right to file a complaint in state or federal court, where a jury of your peers decides the merits of your claims. Theoretically, it is more favorable to have your claims resolved by a jury than an arbitrator or arbitrators selected by your employer.

The Epic Systems Corporation v. Lewis Decision

The Supreme Court of the United States in Epic Systems Corporation v. Lewis, recently considered whether employment contracts that require one-on-one arbitration for resolving disputes are enforceable if their effect is to prevent several employees from jointly suing their employer. The opinion began with the following questions:

Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective        ac­tions, no matter what they agreed with their employers?

The employees involved in the Epic Systems case argued that the National Labor Relations Act (“NLRA”), which secures employees’ right to organize unions and bargain collectively, gave them the right to collective action. The employers argued that the Federal Arbitration Act permitted a bar to collective legal action. The Supreme Court, in a 5-4 opinion penned by Justice Neil Gorsuch, held that the NLRA does not give employees a right to class actions. Rather, the Federal Arbitration Act provides that arbitration agreements must be enforced according to their terms—including terms providing for individualized arbitration.

Fatima Goss Graves, President and CEO of the National Women’s Law Center, released the following statement on the day the Supreme Court issued its opinion in Epic Systems:

Fatima Goss Graves, National Women Law Center’s President and CEO

“Today, the Supreme Court has taken away a powerful tool for women to fight discrimination at work. Instead of banding together with coworkers to push back against sexual harassment, pay discrimination, pregnancy discrimination, racial discrimination, wage theft, and more, employees may now be forced behind closed doors into an individual, costly – and often secret– arbitration process. This will stack the deck in favor of the employer. For all working people, the right to join a class or collective action is an indispensable tool to advance fairness, justice, and equality at work. For women workers, however, the stakes are particularly high. Women often face discrimination that is difficult to detect, like pay discrimination, or suffer from sexual harassment and face retaliation for reporting it. As mandatory arbitration is forced on growing numbers of employees as a condition of employment, the Supreme Court should strengthen rather than undermine the rights of workers to challenge insidious and often widespread civil rights violations.”

In Florida, if you are a non-union employee, have an employment contract, or mandatory arbitration is a condition of your employment, then your ability to sue your employer along with your coworkers for workplace sexual harassment is limited by the Epic Systems decision. Not all arbitration clauses are written the same and some companies are e-mailing their arbitration agreement to employees and telling them that if they continue to be employed there, they are deemed to have accepted the terms. If you and your coworkers are experiencing sexual harassment, you should seek legal counsel to determine whether you are restricted from raising a workplace sexual harassment claim as a class action. We are here to help you figure out the available legal avenues if you find yourself in this situation.

Scandal in the Florida Legislature

The Florida legislature was rocked by scandals in 2017 when two Florida Senate investigations against Sen. Jack Latvala (R-Clearwater) were prompted by six women accusing him of sexual harassment. Rep. Latvala resigned from the Senate after the investigations showed that he engaged in harassing and inappropriately touching female staffers and lobbyists, and for potentially violating public corruption laws by demanding sex in exchange for supporting lobbyist initiatives.

Florida State Senator Jeff Clemens (D-Lake Worth) resigned after admitting to an extramarital affair with a lobbyist a day after his affair went public. And, former Republican congressman and Public Service Commission appointee, Ritch Workman, stepped down after female Senator Lizbeth Benacquisto (R-Fort Myers) accused him of touching her inappropriately and making vulgar comments.

Senator Lauren Book

These scandals and resignations led Florida State Senator Lauren Book (D- Plantation) to introduce Senate Bill 1628 to make sexual harassment in government offices a crime. The bill would have amended Florida statutes on legislative organization and the code of ethics for public officers and employees by making sexual harassment a crime and outlawing sexual advances by legislators, candidates for public office, agency employees, and lobbyists. The proposed law would have also banned the hiring of lobbyist “closers,” i.e., young men and women expected to submit to sexual advances from lawmakers in the closing days of the legislative session. Even though the Florida Senate Ethics and Elections Committee approved the bill immediately in January, different versions of the bill were approved at different points by both the Florida House and Senate, it unfortunately was indefinitely postponed and eventually withdrawn from consideration.

What are the existing laws that make sexual harassment unlawful?

Even though SB 1628 died in the Florida Senate, it is expected to make a comeback in the next legislative session. Sen. Dennis Baxley (R-Ocala), the chair of the Governmental Oversight and Accountability Committee, who refused to put the bill on the agenda, told the Tampa Bay Times that

It needs a little more time to figure out all that’s in there. It will be back. That subject is never finished.”

Outside of the Florida government, sexual harassment is a form of sex discrimination that violates both federal and Florida law. Title VII of the Civil Rights Act of 1964 is a federal law that prohibits discrimination in employment on the basis of sex, race, color, national origin, and religion. In Florida, the Florida Civil Rights Act (“FCRA”) of 1992, Section 760.01, et. seq., Florida Statutes, makes it an unlawful employment practice to “discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.” Like Title VII, sexual harassment is a form of sex discrimination under the FCRA.

Bill Eventually Withdrawn; What Now?

The bill that was inspired by the high-profile resignations would have created a specific sexual harassment statute in Florida prohibiting sexual harassment in government workplaces and agencies failed in the last legislative session and we will have to wait and see if it is reintroduced in the fall. So, what can Florida government employees who suffered sexual harassment do? Title VII and the Florida Civil Rights Act provisions are still in place and provide civil relief, but don’t go as far as SB 1628 would have gone and made sexual harassment a crime or ethics violation. The same standards would need to be applied for now until stronger state legislation is passed.

We Can Help

If you believe you have been the victim of sexual harassment and would like to discuss what remedies may be available to you under both the federal and Florida Civil Rights Acts, please feel free to contact us to discuss your situation.

What is the line between an uncomfortable situation at work and sexual harassment at work?

An employee who believes he or she is the victim of workplace sexual harassment must subjectively perceive the harassment as sufficiently severe and pervasive to alter the terms and conditions of employment, and the subjective perception must be objectively reasonable. This means that a judge or jury will listen to your story, view it from the perspective of a reasonable person in your position, and take into consideration all the circumstances to decide whether a hostile work environment existed.

Florida Law Gives Guidance

In a 2010 Florida case, Grogan v. Heritage NH, the court found that a business office manager who believed she had been a victim of workplace sexual harassment actually did not have a claim because a “reasonable person” in her position would not have considered the supervisor’s conduct so severe or abusive that it would interfere with her employment. The business office manager had accused her supervisor of following her to and from work. She believed her supervisor wanted a romantic relationship and that he made excuses to be near her and to call her at home. The supervisor gave her a good evaluation that helped her obtain a promotion with better pay. But when she received from a higher authority a disciplinary action report for being loud and disrespectful at a staff meeting, she asked the supervisor about applying for another position, and the supervisor helped her update her resume. The supervisor then arranged an interview for the position she wanted to leave. When she found out, her supervisor went to her house and waited in the parking lot for her. They spoke in her back patio where the supervisor apologized for setting up an interview. The next day, the supervisor sent her flowers with a note signed by the company saying, “I’m sorry…I still want you around as B.O.M. for a long time.” The business office manager was terminated after she lodged a complaint with human resources and after an investigation that showed she was upset because of her disciplinary issues. Human resources had concluded that her sexual harassment complaints against her supervisor had been malicious.

The business office manager in this Florida case failed to establish what is called a “prima facie” case of sexual harassment and retaliation. The Court found that the supervisor never made any sexual advances, or in any way obstructed her ability to perform her job.

We Can Help

Perhaps you are in a situation at work with a supervisor or co-worker that makes you feel uncomfortable. You should speak with human resources about the situation to attempt to correct it. Either way, you should feel free to discuss your situation with an attorney to make sense of whether there is a claim for sexual harassment. We are here for guidance.

While many claims of sexual harassment involve harassment by someone in a position of authority, the law also protects victims of sexual harassment by a co-worker.

If you believe that your co-worker is engaging in frequent, severe, and pervasive conduct that is physically threatening or humiliating, and it is interfering with your job performance, you should report it to your employer.  If your employer does not take sufficient action to put measures in place to stop the co-worker’s offensive conduct, you may have a claim for sexual harassment based on a hostile work environment created by the co-worker.

The Hostile Work Environment

There are certain standards to meet for you to have a valid hostile work environment claim against a co-worker.  When harassment is perpetrated by a co-worker as opposed to a supervisor or manager, the conduct complained of must be sufficiently severe or pervasive to alter the terms and conditions of the victim’s employment, and if the conduct is sufficiently severe or pervasive, the employer must have failed to take adequate action to remedy the situation.

To determine whether the co-worker’s conduct is sufficiently severe and pervasive to alter the terms and conditions of employment, courts look at four factors:

(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.

Do Flirting and Isolated Incidents Create a Hostile Work Environment?

Simple teasing or mere flirtation, offhand comments, and isolated incidents (unless extremely serious) do not make up a valid claim of sexual harassment. The offensive conduct must be experienced regularly. For example, in one case reported in Florida, four isolated incidents of a co-worker brushing up against the other and making inappropriate gestures was not severe or pervasive because the isolated incidents took place within the span of two and a half years and the conduct did not affect the victim in her work.

Even if a victim can establish that a co-worker’s conduct was severe, pervasive, frequent, and unreasonably interfered with his or her work, a victim still needs to establish that the employer did not address the victim’s complaints.  Once the victim reports the offensive conduct of the co-worker to the employer, the employer must take corrective action that is immediate, appropriate, and reasonably likely to stop the harassment.  For example, an employer that confronts the co-worker using an escalating pattern of discipline, gives verbal warnings, and changes the two co-workers’ work schedules to avoid their contact satisfies an employer’s obligation to take reasonable steps to stop the harassment.

Are you the victim of inappropriate conduct by a co-worker that happens on a regular basis? Have you reported it to your employer? How did the employer respond? We can help you in figuring out whether you have a claim for sexual harassment perpetrated by co-worker. You should feel safe in calling us to listen to your story.