The #MeToo movement has brought many things to light over the last year along with a lot of questions about what is considered sexual harassment and what to do about it. If you are interested in learning more about these issues, Lapin & Leichtling, LLP will be hosting a Lunch & Learn on March 19, 2019. We’ll be talking about how to recognize and respond to sexual harassment in the workplace. Lunch is free and space is limited, so please RSVP if you would like to attend.

Date: March 19, 2019

Time: 12:00 – 1:00 p.m. We will be starting promptly at 12 p.m.

Location: Lapin & Leichtling, LLP, 255 Alhambra Circle, Suite 1250, Coral Gables, FL 33134. Visitor parking is available on the ground floor of the parking garage behind the building or on the street.

RSVP and Questions: AJanderson@LL-Lawfirm.com or (305) 569-4100.

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.