Miami Employment Lawyer Blog

The Eleventh Circuit Court of Appeals (which covers Florida), recently 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 employees protested and requested that their supervisor stop because they were married and/or simply were not interested in him. Both employees made complaints to Home Depot's human resources department regarding their supervisor's advances, but the conduct and comments continued. Eventually one of the employees quit and the other was terminated for a violation of company policies. They both filed charges with the U.S. Equal Employment Opportunity Commission (EEOC) alleging sexual harassment. However, the EEOC terminated its investigation without a decision. The employees then brought suit in federal court.

Regarding the sexual harassment claims, the trial court granted summary judgment in favor of Home Depot stating that the conduct was simply not pervasive enough to constitute actionable sexual harassment or to create a hostile work environment. The employees appealed the decision to the Eleventh Circuit Court of Appeals. The Court first stated that in order for the conduct to be actionable, the comments and conduct needed to be of a sexual nature. The Court then stated that not all of the statements or conduct complained of were of a sexual nature. For example, the Court stated that comments regarding the appearance of the plaintiffs, that their clothing was appealing, that their hair was beautiful, and that the supervisor liked their eyes were inappropriate workplace comments, but not actionable under Title VII of the Civil Rights Act of 1964 because they were not "based on sex." Yet, oddly enough, the Court stated that these were mere "flirtatious comments." Regarding the touchings and other physical conduct, the Court found that there were only four touchings that were sexual in nature. They that the supervisor put his arm around one of the employees was not conduct of a "sexual nature." Based on this analysis, the Court eliminated many of the alleged comments and touchings and then concluded that the remaining comments and touchings were insufficient to make out a case of sexual harassment because they were just not frequent enough.

The Court's decision is alarming because it fails to view the alleged conduct in its appropriate context and in its entirety, as the law requires. The Court simply eliminated some of the conduct that it considered not sexual in nature, as if it never happened. Then held that the isolated conduct did not constitute sexual harassment. In this regard, Judge Fawsett, of the Middle District of Florida, siting by designation, issued a 10-page dissent stating that the conduct alleged by the plaintiffs goes far beyond "ordinary socializing in the workplace," particularly if viewed in context and under the totality of the circumstances as the law requires. As an example, the Court had held that the supervisor's putting his arm around one of the employees was not sexual in nature. However, Judge Fawsett astutely noted that the Court's conclusion failed to indicate that at the same time that the supervisor had his arm around the employee, he had also put his hand on the employee's thigh under the table where they were seated. Judge Fawsett noted that "[s]elect comments, pulled from their context and deemed facially inoffensive by the majority, demonstrate an impermissible sex bias when viewed in context." Judge Fawsett would have allowed the jury to determine based on the totality of the circumstances whether or not the conduct and comments constituted sexual harassment.

This case shines a light on how cases of sexual harassment need to be addressed. In particular, one of the failings of the plaintiffs may have been their not addressing the conduct and the comments of the alleged harasser in their entirety. They should have shown how all of the comments and conduct had sexual undertones, since it appears that they they did. Indeed, many employees of the company started referring to one of the plaintiff's as "Lenny's bitch." How else could that have been interpreted?

Continue reading "Court Holds that "Mere Flirting" in the Workplace is Fine; Sexual Harassment Must be Pervasive in Order to be Illegal" »

Many clients that have come into our offices in Miami ask whether or not sexually-charged conversations among co-workers constitute sexual harassment even if that conversation is not directed at them. Unfortunately, the use of sexually provocative language and sexual "boasting" in the workplace is all too commonplace. Many employees feel disgusted by such conduct and comments, but are unaware if they can do anything about them, particularly if the comments are not directed at them. Recently, the Fifth District Court of Appeals in Florida clarified this issue and held that sexually offensive language need not be targeted at someone in order to create a hostile work environment. See Blizzard v. Appliance Direct, Inc., Case No. 5D08-4070 (Fla. 5th DCA 2009).

In that case, the evidence showed that a male co-worker constantly talked about his penis, which included graphic descriptions of its size, and constantly bragged about his sexual prowess, history, successes and aspirations. He would make lewd comments about female workers and customers, and whinny like a horse when an attractive woman would come into the store. The comments were not directed at any employee, but one female employee was so disgusted with the constant barrage of comments that she filed a lawsuit claiming that his comments created a hostile work environment.

At trial, the lower court refused to allow the evidence to go to the jury, and Directed a Verdict for the employer. The trial court reasoned that even though there may have been lewd and vulgar comments of a sexually explicit nature, the comments were not directed at the female employee that had filed the lawsuit. They were just generalized comments in the workplace and, although lewd and vulgar, they did not create a hostile work environment because the female employee was not the target of those comments.

However, the Court of Appeals disagreed and specifically held that the plaintiff could have been subjected to sexual harassment by the comments despite not having been a target of the comments. They reasoned that she overheard and was exposed to the comments and vulgarities. That was sufficient under the law for the jury to consider whether or not a hostile work environment was created.

The Blizzard case is significant because last year the Eleventh Circuit Court of Appeals decided a similar case and held that a hostile work environment claim does not require the plaintiff herself to be targeted. See Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139 (11th Cir., 2008). However, that decision was vacated in May 2009 when the Court ordered a re-hearing en banc (by the entire Court) of its decision. The Blizzard case helps to clarify the law in this circuit regarding what constitutes a hostile work environment.

Continue reading "Florida Court Holds that Sexually-Based Vulgarities and Comments May Constitute Sexual Harassment Even if not Directed at Any Specific Employee" »