Miami Employment Lawyer Blog

In previous postings, we reported that the Eleventh Circuit Court of Appeals (which covers Florida) held that "mere flirting" in the workplace is not actionable because it is part of workplace socializing. In that case, Corbitt v. Home Depot U.S.A., Inc., No. 08-12199 (11th Cir., 2009), two employees were subjected to comments, caressing, unwanted hugs, stroking of their hair, and touching of their thighs by their supervisor. The two employees were also subjected to sexually harassing telephone calls, invitations to go out for drinks, and comments about their appearances, such as being "cute" and the color of their hair and their private parts, as wells as suggestions that they would "like it" if they went out with their supervisor. On several occasions the supervisor would forcefully hug the employees in front of other employees and in company meetings. The conclusion in that case was that the conduct in question was just not pervasive enough to constitute sexual harassment. See Court Holds that "Mere Flirting" in the Workplace is Fine; Sexual Harassment Must be Pervasive in Order to be Illegal, Miami Employment Lawyer Blog, October 11, 2009.

Last week, the U.S. Equal Employment Opportunity Commission ("EEOC") filed a lawsuit in U.S. District Court for the Middle District of Florida against two Florida-based travel telemarketing firms on behalf of five female employees that were allegedly sexually harassed by their supervisors. In that case, U.S. EEOC v. Four Amigos Travel, Inc., et al., No. 8:11-CV-1163-T-26 MAP, the EEOC alleged that several male supervisors, including the general manager, conducted daily sales meetings in which there were sexually charged and sexually explicit discussions. The supervisors and managers also allegedly openly propositioned female employees for sex, inappropriately touched themselves, inappropriately touched the female employees, made other aggressive sexual advances towards them and used sexually derogatory terms. One of the supervisors is alleged to have shown a photo of his private parts to a female employee and bragged about it.

Although it is difficult to compare the conduct in the Four Amigos Travel case case with the Home Depot case, it appears that the EEOC is confident that the conduct in their recently filed case is sufficiently pervasive to constitute sexual harassment. The EEOC stated that the women were offended and intimidated by the harassment and were ridiculed for complaining about it. Nevertheless, we will watch this case closely and draw comparisons to the Home Depot decision as the case develops.

Continue reading "EEOC Florida Lawsuit Aims at Curbing Sexual Harassment" »

We recently litigated a hostile work environment claim raised by a female employee against her South Florida employer. One of the principal issues in the lawsuit was not whether the employee had been subjected to a hostile work environment, but whether or not she had taken advantage of the anti-harassment procedures implemented by her employer. In the case, the employee filed a lawsuit against her employer under Title VII of the Civil Rights Act of 1964 alleging that she had been subjected to racial and sexual harassment, which created a hostile work environment.

Specifically, in the complaint, the employee claimed that she had been the subject of sexually and racially harassing remarks during her employment. The employer, however, contended that it was unaware of the hostile work environment because the employee never made any complaints to management or to the Human Resources Department about the sexually and racially harassing remarks. The employer had previously published an Employee Handbook that contained specific procedures that needed to be followed in the event that any employee was faced with harassment or a hostile work environment. The Employee Handbook provided that anyone who felt that they were the subject of discrimination or harassment must report the incidents to management or to the Human Resources Department.

Under the law, an employer can effectively defend a hostile work environment claim by showing that (1) it exercised reasonable care to prevent and correct promptly any harassing behavior, and (2) the employee unreasonably failed to take advantage of the corrective opportunities provided by the employer. This legal doctrine was first announced by the U.S. Supreme Court in the cases of Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Under the doctrine, if an employer shows that it promulgated and disseminated a procedure to be used by employees in the event that they are subjected to harassment, and the plaintiff failed to use the anti-harassment procedure, then the employer will not be held vicariously liable even if a hostile work environment was found to have existed. This would apply only if the employee did not suffer an adverse employment action, i.e., was demoted or discharged.

In the case that we litigated, the facts showed that the employee had not followed any of the procedures outlined in the Employee Handbook. She did not raise any hostile work environment complaints with any management employee or the Human Resources Department. There were no reports of sexual or racial harassment. The employer had no opportunity to investigation and resolve any of the claims. The inference was that abusive events claimed by the employee may not have occurred. The case turned on this fact. Therefore, to the extent that an employer promulgates and disseminates an Employee Manual that contains EEO procedures, employees must avail themselves of these procedures. However, if after availing themselves of the procedures, the company fails to take corrective action, the employer may nevertheless be held liable for a hostile work environment.

Continue reading "Employees who feel that they are being Subjected to a Hostile Work Environment Must Take Advantage of the EEO Procedures Implemented by Employer" »

The U.S. Equal Employment Opportunity Commission ("EEOC") has settled a case of employment discrimination against Nordstrom Department Stores in Florida. In that case, which was filed on September 27, 2007 in the Southern District of Florida, Palm Beach Division, the EEOC brought suit on behalf of 10 former employees. See EEOC v. Nordstrom, Inc., Case No. 07-80894-Civ-Ryskamp/Vitunac. The EEOC charged that a department store manager harassed Hispanic and black employees based on their national origin, race, and color, and retaliated against those who complained about the harassment.

According to the EEOC's lawsuit, an alterations department manager had complained that she "hate[d] Hispanics," and that Hispanics were "lazy" and "ignorant." Hispanic tailors were allegedly chastised by the alterations manager for speaking to each other in Spanish. The same manager made other derogatory remarks such as "I don't like blacks" and "you're black, you stink."

The employees complained to Nordstrom about the harassment, but the harassment allegedly continued. Furthermore, the alteration's manager allegedly retaliated against those who complained by continuing the racially offensive comments, unfairly berating employees and citing them for alleged performance problems.

Nordstrom agreed to settle the case for $292,500 in damages, as well as agreeing to (i) provide harassment training, (ii) distribute its policy addressing unlawful harassment to all employees in the Wellington and Palm Beach stores, and (iii) submit semi-annual reports to the EEOC on all harassment complaints received during the next two years.

Upon announcing the settlement, the EEOC stated that "[e]mployers must act swiftly to correct harassment and prevent abusive conduct. Instead of dealing with the despicable racial and ethnic comments, Nordstrom management allowed the harasser to retaliate against the complaining employees for complaining."

Continue reading "Florida Employment Harassment Case against Nordstrom Stores Settles" »