Hostile Work Environment

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.

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.

 

It has been over a month since Sports Illustrated broke the story of the history of sexual harassment within the Dallas Mavericks’ organization. Since then, the team has hired outside counsel to investigate its culture, and brought in a new CEO who has committed to changing that culture going forward. Now, a new report from Deadspin, based on interviews with former and current employees, shows the important role that workplace culture plays in enabling sexual harassment.

A Real Life Animal House

The stories in the SI report are sadly predictable: the now-former President and CEO of the team once openly suggested that a female subordinate was going to be gang-banged over the weekend, and openly propositioned women for sex; at least one employee was warned, “don’t get trapped in an elevator with him.” A male employee in ticket sales was known for watching pornography at his desk. And in one instance, an employee allegedly dropped a used condom outside an office bathroom, which the head of human resources picked up with a paper towel. SI quotes one employee describing the office as a “real life Animal House.”

Deadspin’s interviews shed light on how this culture persisted for so long: employees were under constant pressure to perform, and there was a feeling that management was either unwilling or unable to do anything about the culture. One former employee described the job as

like being married to a Hollywood star, knowing he was abusive emotionally and physically to you, but you stayed with him because he’s a star.”

In the case of the porn-watching employee, Deadspin reports that employees felt they had no choice but to ignore it because the employee had a long tenure with the team, was known for bringing in a log of money, and, perhaps most importantly, was seen as close with the powerful people above him, who were known for caring only about how many tickets their employees sold. Reports of sexualized comments were dismissed as “talking shop.” And in perhaps the most widely-discussed revelation, the team allowed an accused-domestic abuser to remain with the team, even after he was arrested for alleged abuse of one woman, and was widely suspected of abusing a coworker whom he was dating.

When the Office Culture Protects the Harassers

Above all, the team’s handling of the abuse and harassment allegations sent a message to female employees that they were “just there to protect the men.” Sexual harassment persisted while male employees were given multiple chances. And the physical environment didn’t help. Many employees worked in a completely-open office space, meaning that everyone knew when someone was screamed at, belittled, or harassed. One employee stated that she was initially shocked by the abuse, but felt like she had to look the other way to keep her job.

As the #metoo and #timesup culture movement continues to evolve, it is stories like this that will help us understand how we got here, and how we can improve. In the case of the Mavs, the office culture played a critical role in enabling sexual harassment. Management looked the other way, or even participated in the harassment, intimidating victims and would-be whistleblowers alike into silence. It is in such a situation that an attorney can be a vital resource to a victim or whistleblower. We owe our clients a duty of confidentiality, and can also provide an objective analysis of the situation and possible remedies. If you have been a victim of or witness to sexual harassment in the workplace, don’t hesitate to reach out, especially when the office’s culture would encourage you to remain silent.