Hostile Work Environment

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.

The world’s third largest airline has been accused of failing to protect a female flight attendant from years of harassment by a male pilot. The Washington Post reports that the Equal Opportunity Employment Commission filed a lawsuit in federal court in Texas last week, alleging that the airline refused to take action against a pilot who posted compromising photos of the attendant online, even after she complained to her superiors and the pilot was arrested for stalking (here is a PDF of the Complaint). The EEOC issued a statement on the lawsuit.

Consensual Relationship, Photos, and an Injunction

The Post reports that the woman, who is not identified in the complaint, began a consensual relationship with United pilot Mark Uhlenbrock in 2002, and allowed him to take pictures and record video of her in provocative poses.  She ended the relationship in 2006 when she discovered that Uhlenbrock had posted the pictures on a website for swingers without her knowledge and refused to stop.  The harassment, however, was just beginning.  Over the next decade, Uhlenbrock continued to post the pictures and videos on the internet, including partially nude images of the woman in her uniform, and listing her name, occupation, and home airport.  The Post reports that she filed at least three lawsuits against Uhlenbrock, obtaining a $100,000 damages award and a permanent injunction barring Uhlenbrock from posting the images.  The FBI became involved when he continued to post the images, ultimately arresting Uhlenbrock in 2015 for stalking. He later pleaded guilty and was sentenced to 41 months in federal prison.

No Action from United Airlines

The EEOC’s complaint focuses on United’s response, or lack thereof.  According to the suit, the woman reported the harassment to United’s human resources department and general counsel on several occasions, but the company refused to take action.  Amazingly, the airline allegedly told the woman the Uhlenbrock’s conduct did not constitute workplace sexual harassment and did not warrant intervention or action by the company.  The EEOC alleges that this to prevent and correct Uhlenbrock’s conduct violated Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on sex, which includes sexual harassment.  The complaint notes that Uhlenbrock had supervisory authority over flight attendants, and that the airline had rules of conduct, disciplinary mechanisms, applicable policies and procedures, and the authority to prevent and correct Uhlenbrock’s harassment.  Perhaps most disturbingly, United allegedly granted Uhlenbrock long-term disability following his arrest, and allowed him to retire with full benefits following his guilty plea.

The complaint, which was filed after the EEOC attempted to reach a voluntary settlement through its conciliation process, asks the court to order United to pay compensatory and punitive damages to the flight attendant, and permanently enjoin the airline from engaging in further gender-discriminatory practices.  The EEOC also asks the court to order the company to create and carry out policies and practices that eliminate and prevent sexual harassment in the workplace.

In the EEOC statement, Supervisory Trial Attorney Eduardo Juarez notes that “United was aware of the intimate details of how its pilot was harassing its flight attendant, but took no responsibility to put a stop to it. As a result, over a period of many years, the flight attendant had to work every day in fear of humiliation if a co-worker or customer recognized her from the pilot’s postings. This is unacceptable, and the EEOC is here to fight such misconduct.” According to the Post’s report, a United spokesman disputed the EEOC’s allegations, and claimed that “United does not tolerate sexual harassment in the workplace and will vigorously defend itself against this case.”

We will continue to follow this story as it develops.

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.

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.

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.