Sexual Harassment

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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.

A new lawsuit involving non-lawyer employees at Dentons, the world’s largest law firm, reiterates that there is no area of society immune from sexual harassment issues, and that a company’s response to allegations against an employee deserves as much scrutiny as the underlying behavior. Above The Law and the ABA Journal Blog outline the allegations leveled by Kruanli Parekh, a Business Development Specialist, against Alton Delane, the Managing Director of Dentons’ Venture Technology Group.  Law.com and Bloomberg’s Big Law Business Blog also have reports.

Allegations of Inappropriate Touching and Vulgar Language

Parekh’s Complaint alleges that Delane treated her as a sex object, using vulgar language, trying to draw her in to sexual conversations during late night calls, and touching her legs and buttocks without her consent. The Complaint even offers a bullet-point list of explicit allegations against Delane, while noting that he generates significant business for Dentons and is treated as a partner. Not surprisingly, alcohol is alleged to have played a part in Delane’s alleged-behavior.

Dentons, which just a few months ago dealt with allegations made against a partner while at a firm that merged with Dentons, issued a statement explaining that it placed Delane on administrative leave upon first learning of the allegations, and that it will take appropriate action upon conclusion of an internal investigation.  Parekh’s Complaint, however, alleges that Dentons initial response was far from robust. She claims that when she complained to her supervisor, she was told not to discuss the matter with anyone, which she characterizes as the firm’s effort to silence her and discourage her from seeking outside counsel. Parekh attributes the response—and the environment which enabled Delane’s alleged behavior—to a lack of female representation among the firm’s leadership. There are just three women on Dentons’ 34-member global board, and two on its 20-member global management team. For its part, the firm noted in its statement that five women serve on its 16-member U.S. board.

Whether Dentons responded appropriately or not will be borne out as the case progresses. Above The Law notes that Parekh’s allegation that she was told,

do not discuss this with anyone else inside or outside the firm,”

could be part of a prudent direction if given in the context of a request to wait until the firm concluded its investigation. Parekh’s lawyer told Bloomberg that the firm knew about the allegations for months, and only took action once Parekh sought outside counsel.  What is clear, however, is that even though companies can’t control for every employee’s behavior, they can control their response.  And society is paying attention.

As the #metoo movement continues to ripple through our society, public and private companies are scrambling to update their sexual harassment policies.

Our Lawmakers didn’t want to be left out of the we-hear-you lovefest and, this February, passed what many observers consider a wide-ranging revision of the Congressional Accountability Act of 1995 Reform Act. The bill got rid of mandatory pre-suit mediation and counseling (yes, you read that right, there was a counseling requirement), made legislators personally financially liable for harassment settlements and, perhaps most impressively, provided the victim with legal counsel, something sorely needed if you are a low-paid employee or intern going up against a powerful lawmaker.

Enter the Senate, whose members appear to have thought this whole levelling-the-playing-field business went a bit too far. Last month the Senate passed its own watered-down Bill without many of the House’s most encouraging ideas. For all you nerds, here is the full text. According to a letter from the ACLU (and others) to Senate leadership, the Bill’s main issues are: curtailing the lawmakers’ financial responsibility by adding procedural hurdles and limiting the type of damages they would personally pay; increasing the difficulty of proving claims by using the legal “severe and pervasive” standard; requiring the victims to ‘opt out’ of mediation; reducing transparency by shielding the accusers from public disclosure; and, again perhaps most importantly, limiting the role of the victim’s assigned advisor.

Sidebar: as the letter points out, the Senate Bill also uses the term “unwelcome harassment,” rather than just harassment. The Bill author really should come forward and explain the difference between harassment and “unwelcome harassment” to me. I would really get a kick out of that chat.

Anyway, we will have to wait and see what the reconciliation process (aka the sausage factory) comes up with. Stay tuned.

As the #metoo movement continues gaining momentum, the dialogue around sexual harassment and assault is shifting to reveal the epidemic of sexual misconduct in our culture. Up to 85% of women report having experienced sexual harassment in the workplace, 75% of victims of hostile work environments do not report the harassment, and 75% of those who report harassment experience retaliation. What actions come next? On April 25, 2018, activists, advocates and lawmakers gathered at the U.S. Capitol to say Enough is Enough to the culture of sexual harassment and discuss how to strengthen federal law and policy, organize survivors, address workplace policies, and develop survivor-centric solutions. The Summit exemplifies the types of discussions we need to achieve justice for sexual harassment victims and prevent harassment. Video of the Summit is available on CSPAN.

The Takeaway from the Summit

Toni Van Pelt, NOW President

For Toni Van Pelt, President of the National Organization for Women (NOW), the takeaway from the Summit was “the deeply embedded need to overhaul the ways we deal with sexual assault from a political, legal, and cultural lens.” For her, identifying the scope of the problem, and where activists should target their energies were at the top of her list. Deborah Vagins, Senior Vice President of Public Policy & Research with the American Association of University Women (AAUW), found the Summit to show “we are at a moment in time where hopefully something can be done to address this problem” because the #metoo movement has “pierced the public consciousness” in a way we have not seen in decades.

How do We Strengthen Federal Law and Policy to Address Sexual Harassment?

Deborah Vagins, AAUW Senior Vice President, Public Policy & Research

Title VII of the Civil Rights Act is the federal law that makes it unlawful to discriminate because of an individual’s sex and makes sexual harassment a form of sex discrimination. In addition to built-in limitations in Title VII, court decisions have interpreted the statute in ways that further limit the protections and relief a victim can seek in court. Ms. Vagins, one of the participants on the federal law and policy panel at the Summit, said her panel identified the following barriers in Title VII cases:

  • Standards of liability against the employer have become more difficult over the years. Holding an employer vicariously liable for the misconduct of a daily manager, for example, is more difficult if the manager doesn’t have the power to hire or fire you;
  • Forced mandatory arbitration clauses that force victims to forego their day in court;
  • Non-disclosure agreements that are a condition of employment;
  • Short statute of limitations;
  • Title VII’s fifteen-employee threshold for the law to apply to the employer; and
  • Title VII’s limited reach that does not cover independent contractors.

Ms. Van Pelt adds that we need to look “towards strengthening Title VII protections for all workers,” including those in small companies, contractors, domestic workers and laborers like caregivers and maids, and farm and migrant labor workers because they “are some of the most abused and exploited workers in the world.” Ms. Van Pelt also emphasized the importance of renewing the Violence Against Women Act (VAWA) which will automatically expire if not renewed this year. She believes VAWA should also specifically address sexual harassment and assault in the workplace and in schools.

Potential Legislative Proposals

Besides strengthening Title VII and VAWA, Ms. Vagins and Ms. Van Pelt shared the following existing or potential bills with me:

  • Arbitration Fairness Act – to prohibit pre-dispute mandatory arbitration in employment discrimination, consumer, antitrust, and civil rights cases;
  • Ending Forced Arbitration of Sexual Harassment Act – limits pre-dispute mandatory arbitration in sexual harassment cases only;
  • Equal Remedies Act – an older bill that would lift the caps on Title VII damages, helping to deter companies from knowingly violating Title VII;
  • Fair Employment Protection Act – makes employers liable for harassment by workers who have the authority to control the daily lives of employees regardless of the authority to hire or fire;
  • Bills relating to the legislative workforce and their unpaid interns;
  • Bills addressing non-disclosure clauses as a condition of employment, requiring that public companies disclose the number of settlements in connection with harassment; and
  • Bills with requirements for developing and disseminating workplace training programs.

Ms. Vagins points out that none of these bills holds the answer, “but in combination would go a long way.” Ms. Van Pelt believes it is also important to strengthen Title IX to ensure it is “not only protecting students on campus, but that there are clear and transparent reporting processes.” As for timing, movement on these proposals and bills won’t have to wait until after the 2018 mid-term elections. “Right now a bipartisan committee is already working on VAWA; however I believe that the influx of progressive women running for office in November will inevitably bring about a much-needed cultural change” says Ms. Van Pelt. Ms. Vagins is equally optimistic and says to

never underestimate the power of public pressure to make change.”

If either chamber flips to a different party, Ms. Vagins thinks we will “probably see a flurry of these bills pass,” so legislators need to be careful to protect existing civil rights bills from unfriendly amendments.

Year-Round Resources

The Enough is Enough Summit may become a much-needed annual event to continue this important dialogue and find solutions. Throughout the year, AAUW, NOW, and some of the other organizations that participated in the Summit provide resources and legislative campaigns for sexual harassment victims their attorneys including: AAUW’s Legal Advocacy Fund to offset litigation costs and Know Your Rights materials; NOW’s national action campaigns; and the National Women’s Law Center’s Time’s Up Legal Defense Fund. If you are experiencing sexual harassment in the workplace, we can help you understand your rights.

De todas las ventajas que los empleadores tienen sobre las víctimas de acoso sexual laboral, quizás ninguna de ellas se iguala al poder que tienen los empleadores a obligar a los empleados que son víctimas de acoso sexual, a someterse al arbitraje y renuciar al derecho que tienen de presentar una demanda, ya sea en una corte estatal o federal.

Nota: por si usted no sabe, el arbitraje es un tipo de corte privada donde uno o mas árbitros hacen las veces de quasi jueces. Muchas veces, los contratos de empleo incluyen claúsulas en las que se le require al empleado someterse al arbitraje en casos de disputas laborales – incluyendo casos de acoso sexual.  Dependiendo de a qué parte le preguntemos, obtendremos diferentes reacciones sobre si el arbitraje es algo bueno.  Según la Asociación Americana de Arbitraje, el arbitraje es “más rápido y más rentable que litigar.” No es de sorprenderse que por lo general los empleadores estén de acuerdo con esta evaluación; es más, después de varias cervezas hasta podrían admitir que el arbitraje en sí favorece ampliamente a los empleadores. Pero, aunque aceptemos la premisa “rapidez-rentabilidad” (por salvar ese argumento), las víctimas de acoso sexual que buscan ser compensadas quizás no se beneficien tanto de esta rapidez y eficiencia.

El abogado general de cada estado de los Estados Unidos de Norte América parece pensar de esta manera. En una carta de fecha 12 de Febrero del 2018 dirigida al Congreso – la cual fue difundida por nuestro propio abogado general, Pam Bondi – los abogados de todos los estados concluyeron unánimemente que “[a]unque hay muchos beneficios con las claúsulas de arbitraje en otros contextos, las mismas no se extienden a los casos de acoso sexual.” Por qué? Porque los árbitros

no están colocados para asegurarse que a estas víctimas se les otorgue su derecho al debido proceso legal.”  

Estas declaraciones son bastante fuertes viniendo de representantes de los estados altamente Republicanos (también conocidos como “amigos” de los empleadores), así como de los estados altamente Demócratas.  La carta también resalta el efecto dañino que el secretismo – muchos de los árbitros son secretos ‒ puede tener en la sociedad, pues el alcance del problema básicamente se barre debajo de una alfombra proverbial.

Entonces, veremos algún cambio? Francamente no temenos idea . . . la Ley del Arbitraje Justo del 2018 fue presentada al Congreso en Marzo del 2018. La propuesta de ley pretende prohibir el arbitraje en casos relacionados con disputas de empleo, consumo, antimonopolio, y derechos civiles. Pero, como dirían los observadores de la factoría de leyes que el Congreso contempla: el camino entre una propuesta de ley y la ley en sí es bastante largo.  El movimiento #metoo ha sido claramente el ímpetu para esta propuesta de ley.  Sólo tendremos que ver si el deseo se sigue manteniendo aún después de que el tema del acoso sexual se haya desvanecido de los encabezados noticiosos.

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.

So, the last time I discussed the 15 Key Steps employers should take, according to AllBusiness.com, to respond to sexual harassment claims, I mentioned “lawyering up” and being “fair” (as well as, perhaps more importantly, “appearing fair.”)

Minimizing access to information

I want to pick up with one theme I briefly touched upon the last time, an idea either implicitly or explicitly expressed in most of the 15 employer-tips: in responding, the employer should (a) minimize creating potentially damaging evidence and (b) make it more difficult for the victim to have access to potentially relevant information. Two examples illustrate these goals.

First, in Step #5 on “taking appropriate action,” the attorney author throws in, almost as an aside, that

[i]t is important to document the discipline carefully, although specifics about the investigation should not go into personnel files.”

(emphasis added) I am sure that, depending upon who you ask, there are several reasons for this; and, perhaps some of them are even legitimate. But, surely one of the real reasons for this advice is that the personnel files are much easier for employees to access and, therefore, they would be easier to provide to a plaintiff’s attorney to assist him or her in evaluating the case. Keeping the investigation findings separate from the personnel file adds another layer of protection from future discovery. I am not saying the investigation and underlying material won’t be discoverable – it very well could be – but keeping it separate from the personnel file adds a further complication; a future plaintiff’s attorney must first determine the materials exist and then obtain them.

Minimizing damaging evidence

And second, tip #10 is disarmingly honest and aims at minimizing damaging evidence: “Be careful with texts and email.”

The evidence code contains a so-called “hearsay exception” for an “excited utterance,” something that someone blurts out in the moment, when emotions are running high (e.g. right after a car crash). [Sidebar: for non-lawyers, hearsay is lawyer-speak and means that the rules of evidence often prevent witnesses telling the judge or jury what another person said to them.] If you are curious, the excited utterance exception is § 90.803(2) Fla. Stat. and can be found here. The idea behind this “excited utterance” exception is that people are more likely to be truthful in the moment, when they have not had time to reflect on the situation and decide what is in their best interest to say.

This is similar to what the author is trying to get employers to minimize. She is telling the bosses-of-the-world to hold their fire on emails and text messages in the hours and days after the victim makes his/her allegation, or after the situation first comes to their attention. Put cynically, the advice is that the employer might be too honest in the moment, that he/she might reveal too much. So, the advice is to pick up the phone and refrain from putting anything in writing, especially when texts and emails are so easy to shoot off and will then be out there, as a great record for plaintiff’s attorneys to mine when ligation ensues.

Why am I telling you all this? Well, for one thing it’s important to realize what advantages (both structural and tactical) employers have, and to develop an awareness for them. After all, how can you hope to address and overcome them if you don’t know they exist. Also, every once-and-a-while what appears like an advantage for the other side can turn out to be, if not a liability, then at least an opening to exploit.

Scandal in the Florida Legislature

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

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

Senator Lauren Book

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

What are the existing laws that make sexual harassment unlawful?

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

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

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

Bill Eventually Withdrawn; What Now?

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

We Can Help

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