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“Having spent seven years of my career representing personal injury victims, including victims of big tobacco in a historic class action, I became interested in representing victims of sexual harassment after hearing their stories.   No one should have to endure sexual harassment of any kind. Sexual harassment in the workplace is particularly intolerable.   While nearly all of us can relate to the ordinary stress that any workplace will inevitably impose, having to cope with sexual harassment on top of the pressure of workplace responsibilities can cause severe distress, and demoralize even the most resilient. I enjoy listening to and helping people, and want to be part of a solution to this serious problem.”

Nicole Reyes moved to the United States from the Philippines with her five-year-old daughter and husband just over a year ago, speaking minimal English. Through a family friend who knew the owner, Maria Santos, also from the Philippines, Mrs. Reyes got a job in Hotel Pagalit cleaning rooms. When she began her employment with the hotel, Mrs. Reyes received a fifty page handbook in English with the hotel’s policies and procedures, which included a section on how to address any sexual harassment she might encounter. The handbook defined sexual harassment, contained examples of verbal, physical and non-verbal harassment, stated that any form of sexual harassment was strictly prohibited and should not be tolerated by any employee, provided information about the hotel’s human resources department, how to record and report an incident of sexual harassment, the individuals to whom sexual harassment should be reported, the investigative procedures the hotel would carry out in response to reports of sexual misconduct, and instructions on how to minimize the risk of being harassed in the first place. The hotel required that cleaners work in teams of two or more, and never enter rooms alone, in an effort to reduce the risk of sexual harassment. The handbook also stated that the hotel would take prompt, vigorous action in the form of discipline, reporting to the police, and/or dismissal against anyone who, after a full investigation, was determined to have sexually harassed or engaged in sexual misconduct against another.

The owner’s husband, Angelo Santos, did not have a formal management position or ownership interest in the hotel. Nonetheless, he was a constant presence at the hotel, and would informally participate in the hiring and firing of employees such as Mrs. Reyes. Maria and Angelo Santos would jointly discuss employees’ rates of pay, the number of hours employees worked, and job assignments, and who should be hired and let go, although the ultimate decision-making authority rested with Mrs. Santos. According to the hotel handbook, any reports of sexual harassment alleging improper physical contact would have to be reported to Mrs. Santos by senior human resources personnel.

Coerced Sexual Activity By the Hotel Owner’s Husband

Mr. Santos falsely told Ms. Reyes that he was the owner of the hotel and was her boss, and that if she did not do as she was told, he could fire her. He asked repeatedly to meet with her privately in one of the vacant rooms. Once in the room, Mr. Santos would then tell Ms. Reyes that if she did not have sex with him, she would lose her job, lose her husband, and be sent back to the Philippines. Mrs. Reyes was terrified of Mr. Santos, and as a result, had frequent coerced sex with him throughout her employment. After the sexual activity, Mr. Santos would threaten that if Mrs. Reyes reported him she would be fired, he would tell her husband that she was unfaithful, and that he would prevent her from finding another job in the United States.

Ms. Reyes Quits Without Following The Employer’s Procedures

After about six months of giving into Mr. Santos’ sexual demands, Mrs. Reyes had finally had enough. She told her husband about all of the abuse that she had endured from Mr. Santos, and quit working for the Hotel Pagalit. Mrs. Reyes did not report any of the abuse to the hotel or its human resources department, nor did she follow any of the procedures outlined in the hotel’s handbook, partly because she could not read much English, and partly because she believed that Mr. Santos was the owner of the hotel, and that any recourse through the hotel’s channels would be futile. Mr. and Mrs. Reyes then hired an attorney to sue the hotel on his wife’s behalf.

The Employer’s Faragher Defense

In 1998, the U.S. Supreme Court in Faragher v. City of Boca Raton held that an employer may raise a defense to an action seeking to hold it vicariously liable to a victimized employee for a hostile work environment created by a supervisor with immediate or successively higher authority over the employee, where no tangible employment action is taken against the victimized employee, by showing that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm or otherwise. If the harasser himself holds such a high position in the company that he could be considered the employer’s alter ego, the defense is inapplicable. In a recent Florida case, a hotel attempted to assert the Faragher defense where it was the owner and general manager of the hotel who was sexually abusing and victimizing the plaintiff hotel worker, and the hotel fired the worker when she began to refuse the owner/general manager’s advances. Charest v. Sunny-Aakash, LLC, 2017 WL 416901 (M.D. Fla. 2017). The Court rejected the hotel’s Faragher defense, both because the hotel took retaliatory action against the worker and because the harasser was the hotel’s alter ego.

In Mrs. Reyes’ (fictional) case, the applicability of the defense is less clear. Mr. Santos had no ownership or formal management position with the hotel, but falsely represented to Mrs. Reyes that he did. And Mr. Santos had substantial influence over the actual owner of the hotel, who had the ultimate authority to hire and fire employees, determine their rates of pay, and assignments. Moreover, while the hotel’s procedures might have been reasonable, it is less clear whether Mrs. Reyes’ failure to follow them was unreasonable, particularly where she spoke and read little English, and arguably reasonably believed Mr. Santos had the power to fire her and that her complaints would therefore fall on deaf ears. Mrs. Reyes could also argue that Mr. Santos, who was married to the actual owner and manager of the hotel, was a de facto alter ego of the hotel, even if he did not hold a formal ownership or management position.  In any case, availing oneself of the employer’s procedures and remedies for addressing sexual harassment can help to avoid the employer from successfully asserting a Faragher defense.

Hotel workers are particularly vulnerable to sexual harassment. For more on this subject, see the recent NPR article, Advocates Push for Stronger Measures to Protect Workers from Sexual Harassment.

Immediately after graduating from law school, Carl began working as a law clerk for Judge Jorge Martinez. Carl loved his job, which enabled him to watch civil and criminal trials, perform research and draft proposed legal opinions, provide recommendations to the judge, and meet other judges, law clerks and prominent lawyers in the community. After a few months, Judge Martinez introduced Carl to one of his colleagues, Judge Martha Stone, to whom Carl was immediately attracted. Much to Carl’s surprise, the attraction turned out to be mutual, and after consuming a few drinks and spending considerable time together at a fundraising event, Carl and Judge Stone began dating. Initially the relationship was extremely positive. The mutual attraction was both physical and intellectual. The two discussed cases and legal issues together, and Judge Stone was impressed with Carl’s abilities. But after a few months, the love affair turned sour. Judge Stone believed Carl was secretly seeing someone else, and an ugly side of her emerged. Judge Stone decided not only to end her relationship with Carl abruptly, but to make his life as miserable as possible.

The Harassment Begins: Unwanted Touching and Pictures Posted in the Bathroom

Whenever Judge Stone spoke to Judge Martinez and Carl was within earshot, Judge Stone asked how Judge Martinez could manage his caseload in the absence of any competent support. She said she knew of at least a dozen other recent law graduates far more qualified for Carl’s job. On several occasions after chatting with Judge Martinez, Judge Stone would leave Judge Martinez’s chambers, enter Carl’s office, and get extremely close to Carl, brushing up against him in a way that he felt was inappropriate and intended to intimidate. One day, outside the men’s restroom, Carl found a photograph of himself he remembered had been taken by Judge Stone. Under the photograph was an added caption, “We Who Labor Here Seek Only Truth. Carl: We Don’t Want Your Tiny Hands Anywhere Near Our Underpants”. From that point forward, the judges and judicial staff shunned Carl. One day when Judge Martinez was away from his chambers, Judge Stone came in and begged Carl to get back together with her, on the condition that he promised to be faithful to her. Carl tried to be polite, but explained that he had moved on, and was uncomfortable resuming the relationship in light of recent events. Judge Stone stormed out of Judge Martinez’s chambers without a word. Later that week, Judge Martinez started treating Carl dismissively, unlike ever before, finding fault with every piece of Carl’s research and writing, and began ridiculing every one of his recommendations. Carl’s dream job was now a nightmare.

Carl is Terminated After Complaining to Human Resources

Carl reluctantly complained about Judge Stone’s harassment to human resources. The human resources manager listened politely at first, but then disclosed that Judge Stone had previously complained about Carl, claiming that he was sexually harassing her. The manager asked if Carl really expected he would be believed, and suggested that he resign voluntarily. Shocked, Carl left discouraged, but vowed he would fight on. How could he ever be an effective lawyer fighting for the rights of others, if he couldn’t even stand up for his own rights? Carl refused to quit, and was promptly terminated. He retained a lawyer, and brought an action claiming he was exposed to a hostile work environment, and that his termination was retaliation for having complained about Judge Stone.

When Can Harassment After a Failed Intimate Relationship Constitute Actionable Workplace Harassment Under Title VII?

To establish a claim of hostile work environment sexual harassment under Title VII, the employee must allege and prove that the harassment was based on the employee’s sex. The mere fact that an intimate relationship gone wrong results in harassment by one co-worker against another in the workplace, does not in itself turn sex-neutral harassment into actionable sexual harassment. Rather, courts often find that harassment by a co-worker is not considered to be based on sex when it arises from a failed relationship. On the other hand, a prior failed relationship between an accused harasser and an alleged victim does not insulate the harasser from a finding of sexual harassment. A teacher who harassed a fellow teacher following a failed intimate relationship, by making threatening overtures toward the teacher’s wife and son, verbally and physically harassing the teacher in front of colleagues and students, for example, did not constitute actionable sex discrimination under Title VII, because it was motivated not by the teacher’s male gender, but by his former lover’s contempt following their failed relationship; the male gender was merely coincidental. Succar v. Dade County School Bd., 229 F.3d 1343 (11th Cir. 2000).

In contrast, when an employee was terminated because she reasonably believed it was a retaliatory discharge because she was the victim of harassment that was at least partly sexual in nature, she had a viable Title VII claim against the employer. The harasser’s brushing up against the employee in a way that appeared sexual and made her uncomfortable, and soliciting her to reinstate their previously intimate relationship, was sufficient to provide her with an objective belief that she was the victim of gender-based actionable sexual harassment. Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183 (11th Cir. 2001).

In Carl’s case, he likely has enough to pursue a claim for retaliation under Title VII for reporting sexual harassment, particularly because Judge Stone sought to reinstate their intimate relationship, posted the photo of Carl with a sexually demeaning caption, and brushed up against Carl in a sexual and intimidating manner. Even though Carl did not work directly for Judge Stone, she was in a position of considerable power relative to Carl, similar to a case against a judge in Massachusetts that was recently filed and led to the judge’s resignation. Have you experienced sexual harassment that resulted from what began as a consensual relationship? If so, we may be able to help.

Seo-Yun was a 15-year-old public high school student who came to the United States from South Korea at the age of ten. By the time she reached high school, Seo-Yun was speaking English fluently and excelling academically. Seo-Yun even published her own first book of poetry, which contained poems in both English and Korean.

Nonetheless, high school bullies went after Seo-Yun because she was shy, deferential to her teachers and peers alike, and had a slight accent. The most vicious group was led by an 18 year-old sophomore named Todd, who unfortunately for Seo-Yun, sat right next to her in science class. Todd had been held back twice, and had been the victim of bullying himself. But nothing made Todd feel better than taking out fears, his anger, and his profound sense of inferiority over someone more vulnerable than he.

At first, Todd and his group of bullies mostly leveled cultural and racial slurs at Seo-Yun.   But when they saw that she did not fight back, and the teachers chose to ignore the situation rather than intervene, things escalated.

Bullying Turns to Sexual Harassment

Todd began passing graphic and sexually explicit notes to Seo-Yun in science class whenever the teacher turned his back. Mortified and humiliated, Seo-Yun would just crumple up the notes and put them in her bookbag, hoping no one would seem them. But things got even worse. Todd began to reach under Seo-Yun’s desk and touch her thighs, telling her to watch out after school because he would be waiting for her, and couldn’t wait to have sex with her, whether she wanted to or not. One day, Seo-Yun just couldn’t take it anymore and let out a blood-curdling scream in the middle of science class. She was removed from class and served detention for disrupting the lesson.

Later that week, Seo-Yun had to make up the science quiz she missed when she was removed from class. Just as she began the quiz, Todd and his friends entered the room and surrounded her. A substitute teacher was administering the quiz and appeared petrified of Todd and just sat there watching Todd taunt Seo-Yun, whisper sexually explicit threats in her ear, and make sexually explicit jokes to the cackling laughter of his lackeys. After several excruciating minutes, the substitute teacher finally asked Todd and his friends to leave the room. Seo-Yun failed the quiz.

The Public High School Fails to Remedy the Harassment

When Seo-Yun’s grades began their steep decline, her parents continually tried to find out what was going on. While Seo-Yun initially refused to tell them, she eventually broke down and explained Todd’s harassment. Seo-Yun’s parents called the school, set up a parent-teacher conference with the science teacher. The science teacher said he had noticed that Todd had been bothering Seo-Yun, and that he had already spoken to Todd about it. The teacher assured Seo-Yun’s parents that nothing like that would happen again and that the principal had been informed about the situation. But Seo-Yun’s troubles continued after the parent-teacher conference. In fact, the teacher did not even move Todd away from Seo-Yun.  And Todd did not change his ways. He just became a little more discreet by approaching Seo-Yun when no one was around, threatening her, and touching her inappropriately. Seo-Yun’s parents learned that the harassment persisted, and repeatedly called the principal, only to leave messages that were unreturned. Seo-Yun grew increasingly withdrawn, could not concentrate on her schoolwork, and began failing all of her classes. As it so happened, Seo-Yun was not Todd’s only victim. Later that year he pled guilty to sexually assaulting another classmate, and was expelled from the school. But by that time, Seo-Yun had suffered lasting damage.

The Standard for Successfully Suing an Educational Institution For Knowingly Failing to Remedy Student-on-Student Harassment

Title IX of the Education Amendments of 1972 provides that subject to certain limited exceptions, no person in the United states shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity received Federal financial assistance. The United States Supreme Court has interpreted Title IX as providing a private right of action for damages for the failure to remedy student-on-student harassment – but only where the federal funding recipient acts with deliberate indifference, and the harassment is so severe that it effectively bars the victim’s access to an educational opportunity or benefit. In Davis v. Monroe County Board of Education, the U.S. Supreme Court held that there is only liability for damages where the funding recipient has control over not only the harasser, but the context in which the known harassment occurs. Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Recently, the University of South Florida was sued for allegedly failing to remedy alleged student-on-student sexual assault. The U.S. District Court found that the student who brought the suit stated a claim under Title IX, without deciding the merits of the claim. If you or someone you know has been subjected to a hostile educational environment, or has a child who has been subjected to a hostile educational environment, we may be able to help.

Catherine, a cultured woman in her late fifties, had worked as a sales associate with her high-end retail employer for almost twenty years.   She loved her job, and excelled at it. Catherine was a people person. She had an approachable, polite, yet assertive demeanor, and had a knack for sizing up and tuning into customers. Most of all, she generated sales. She was one of the company’s most valued employees.  She not only loved her success, but also her work environment, enjoying respectful, friendly, and professional relationships with co-workers, subordinates and management alike. But as all good things must come to an end, so too did Catherine’s harmonious employment environment.

The New Abusive Manager  

Catherine’s new manager was a brash, impulsive, ill-mannered thirty-two year old named Rudy. Rudy happened to be the nephew of one of the company’s top executives, and because of this relationship, Rudy felt all too secure in his employment. Yelling, screaming, and hurtling insults at employees were the defining features of Rudy’s management style. But not only did Rudy have anger management problems, but he also fancied himself a Don Juan. He was constantly trying to impress younger female staff, and even on occasion customers, through graphic descriptions of his penis size, sexual prowess, and sexual conquests.  He would make sexually explicit comments about female workers, and even make noises simulating intercourse when younger attractive women would enter the store. Those female employees who were receptive to Rudy’s vulgar comments got special treatment, including more flexibility with days off, and even recommendations for raises.

Perhaps because of her age or her refined demeanor, Rudy never directed any of his sexually explicit comments toward Catherine. But Catherine was devastated by Rudy’s behavior, suffered from daily anxiety, and grew to hate the job she had once loved so much. Catherine knew she needed to take action.

Complaints Fall on Deaf Ears

Catherine went to the human resources director, who at first seemed sympathetic to her situation. The director agreed that the behavior Catherine described was unacceptable, and said she would speak to Rudy about it. In the days following the meeting, Catherine felt relieved.   But the following week, Catherine learned that her complaints had fallen on deaf ears.   Rudy had asked all the retail sales associates to come to his office for an emergency meeting. “I understand somebody has gone upstairs to complain about me”, he said. “Do you really think they’re going to get rid of me? Don’t you know who I am? You people are pathetic”. Later that evening, Catherine placed a call to the regional manager.   But her call would never get returned.   The following day, Catherine was terminated.

Even if Not Targeted Directly at You, Abusive Words and Conduct Can Provide a Basis for a Hostile Work Environment Claim

Sexually explicit words and actions of a supervisor that are not specifically directed at you can still provide a basis for a hostile work environment claim, particularly when the remarks and actions cause you harm and are sufficiently pervasive and severe.

A Florida appellate court in Blizzard v. Appliance Direct, Inc.  relied on an earlier Federal case involving racially offensive language in the work place, found that sexually explicit language and actions by a supervisor in the presence of the employee need not be specifically directed toward the employee in order for her to have a claim based on a hostile work environment. The court reasoned that because the offensive conduct was by the employee’s supervisor, was severe and pervasive, and the employee was “essentially swept up in its backwash”, there was still a basis for holding the employer liable for the supervisor’s conduct.

The following narrative is loosely based on an experience by a woman I know, whom I’ll call “Susan”, who is now a high level executive within her company.  Susan is a smart, savvy, hard-working career woman who, several years ago, had been waiting for an opportunity to prove her capabilities.  One day, that opportunity presented itself.  Or so it appeared.

Restaurant “Work” Meeting

Susan’s boss Mark came by her office to talk to her about the marketing project she had been intensively working on for the past several weeks. Mark was someone she didn’t know particularly well. Rather, he was someone Susan had admired from afar.   Mark exuded confidence and competence, managed people with ease, and had an impressive intellect.  Mark was several years Susan’s senior, extremely accomplished, and she respected him.  Because Mark was travelling later that day, he asked Susan to meet with him at a restaurant near the airport to discuss the project.  Although there were more than a dozen members on the project’s team, Susan was the only one with whom he wished to meet.  And that only made sense, because she was the leader of the group, the person who had put in the long hours, and the person who had contributed her own original ideas to the project – ideas that she would have implemented at her own company if she had one.  Susan believed she was finally getting the recognition she deserved.

Susan organized her power point notes and best thoughts, and headed to the restaurant, where Mark was already waiting for her when she arrived.  She was wearing her favorite navy business suit, because she understood that impressions count, and professionalism can be communicated through appearances as well as through good work.   After greeting Mark, Susan exchanged a few pleasantries, and then dove right into the project.  The restaurant was empty, as it was not meal time, but Susan thought nothing of it.   She had a vision for improving the company for quite some time, and thought this was her chance to convey that vision to the person in charge.

He’s Not Interested In Your Work

But as Susan eagerly began to discuss the project with the man sitting directly across from her, she noticed that something was not quite right, and a deeply uncomfortable reality emerged.  Mark was not interested in her project, her ideas, her talents, her experience or her hard work.   He wanted to date her, even though both were married.  He didn’t say anything overtly sexual, nor did he initiate any physical contact.   But he made his intentions clear, suggesting that at their next meeting she wear something more casual, perhaps a shorter skirt that would better flatter her attractive figure.  Mark flirted, asked personal questions, and wanted to know about Susan’s availability on the weekend and after hours. He wanted to have a sexual relationship, and her decision about whether to accept or reject his advances would likely have an impact on her career within the company.    She then recalled the rumors she had heard about him, which she had previously dismissed as malicious office gossip.   But there she was, sharing food and having drinks with him at a restaurant, with no one around to see what was happening.

If she refused his advances, she worried she might be punished.  She could be relegated to a minor role in the company, ignored, demoted, or worse, perhaps even terminated.  But she found his behavior demeaning and insulting, and did not want to get romantically involved.   She did not know what to do.

Rejection of One-Event Sexual Advance by a Supervisor Outside the Workplace Can Meet the Necessary Elements of a Claim for Retaliation Under the Florida Civil Rights Act

Can a one-time sexual advance by a boss or supervisor outside the workplace constitute sexual harassment?  Is the company responsible?  How should you respond?  If you reject the advance and experience adverse consequences, do you then have a claim against the company?  The answer is it depends.

A Florida appellate court recently determined that an employee’s rejection of a one-event sexual advance by a supervisor at a non-work sponsored party can meet the necessary elements of a claim for retaliation under the Florida Civil Rights Act against the employer.  But in order for the sexual harassment preceding the employment decision to be actionable, the conduct must be severe or pervasive.  The conduct at issue in the recent Florida case  — which involved nonconsensual physical sexual contact — was considerably more severe than the conduct described in this blog post.  Even if severe, an off-premises advance by a boss or supervisor by itself still may not be enough support a claim against the employer, unless the victim’s rejection of the advance is followed by adverse employment actions taken by the employer.   If, for example, you are fired, demoted, transferred, or denied advancement opportunities, and the evidence shows these adverse actions were caused by your rejection of the unwanted advance, you may be able to recover compensation for your damages, which could include lost wages, compensation for emotional distress, and attorneys’ fees and costs.