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 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.

On June 25, 2018, the U.S. Court of Appeals for the 11th Circuit issued its opinion in Wilcox v. Corrections Corporation of America in favor of the employer in a Title VII sexual harassment claim. The 11th Circuit affirmed the district court’s granting of the employer’s Rule 50 Motion for Judgment as a Matter of Law (“Rule 50 Motion”) after a jury returned a verdict for the employee, Felicia A. Wilcox, of $4,000 in actual damages and $100,000 in punitive damages. The 11th Circuit Court of Appeals agreed with the employer, Corrections Corporation of America, that the employer could not be held liable because it took prompt remedial action after Ms. Wilcox complained about the harassment.

Helen H. Albee, one of Ms. Wilcox’s attorneys, was surprised that the 11th Circuit followed what the district court did and were “unconcerned with the amount of factual analysis the district court did on the Rule 50 motion.” Ms. Albee noted that after the jury’s verdict, the district court did “a lot of re-weighing the evidence the jury did already.” Let’s take a look at the facts and what happened in this case.

What Happened and When?

Ms. Wilcox alleged that a coworker, Larry Jackson, slapped her buttocks twice, squeezed her thigh, and made sexually explicit remarks on different occasions. When Ms. Wilcox filed a complaint with her employer, the employer took the following steps:

  • The employer ordered Jackson not to be around Ms. Wilcox immediately, but nonetheless he rolled his eyes at her repeatedly and punched a metal machine in front of her to intimidate her;
  • After Ms. Wilcox made a second complaint to the employer about prior sexual harassment incidents and her fear that he would touch her again, the employer’s investigator interviewed Ms. Wilcox 6 weeks after her first complaint;
  • The employer’s investigation included interviews with 16 other employees that resulted in sexual harassment complaints against Jackson by other employees;
  • 8 weeks after Ms. Wilcox’s complaint, the employer’s investigator found that Jackson sexually harassed Ms. Wilcox and other employees; and
  • The employer terminated Jackson five days after the investigation report.

Knowledge + No Prompt Remedial Action = Employer’s Direct Liability

An employer can be held liable for a hostile work environment claim through either vicarious or direct liability. If the harasser is not the victim’s supervisor, an “employer will be held directly liable only if it knew or should have known of the harassing conduct but failed to take prompt remedial action.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1278 (11th Cir. 2002). Wilcox argued that her employer should have known about Jackson’s additional harassment after she complained about him because he would inappropriately hug female employees and make intimidating looks and gestures toward Ms. Wilcox after her first complaint. The 11th Circuit didn’t think the harassment was sufficiently pervasive to impute knowledge to the employer because (1) Ms. Wilcox didn’t report the hugging or intimidating conduct; (2) there wasn’t any evidence that the hugging was widespread or considered offensive; and (3) the employer’s anti-discrimination policy was well-known and vigorously enforced.

As for the employer’s “prompt remedial action,” the 11th Circuit held the employer’s action was effective “and a reasonable jury would not have a legally sufficient evidentiary basis to find otherwise.” Wilcox v. Corr. Corp. of Am., No. 17-11919, 2018 WL 3099892 (11th Cir. June 25, 2018). The only prompt action that seemed to occur here was ordering Jackson to stay away from Ms. Wilcox. Nine weeks is a long time to be working alongside a harasser who is being physically intimidating without saying a word. During oral argument, the employer’s attorney argued that Jackson’s termination within 5 days of the report concluding sexual harassment occurred and investigation into numerous other allegations showed that the ends justified the means because “the investigation was reasonable under the circumstances.” The 11th Circuit reasoned that a jury could not find that the employer failed to act promptly because “there were a lot of moving parts in the company’s investigation, and each of those workings took time” and “culminated in Jackson’s termination.” Wilcox, No. 17-11919, 2018 WL 3099892 (11th Cir. June 25, 2018).

Many employees want to know what is going on with the company’s investigation after lodging a sexual harassment complaint. Working alongside a harasser while an investigation is ongoing can be excruciating, but many employers don’t keep the victim apprised of the investigation. While taking six weeks to interview a victim scarcely seems “prompt,” a court may conclude otherwise if the investigation is complicated and results in the harasser’s termination. If you are experiencing sexual harassment at work, an attorney can help you understand your rights and guide you through the pre-litigation phase.

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.

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.

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.

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.