Miami Employment Lawyer Blog

The U.S. Equal Employment Opportunity Commission (EEOC) reported last week that it settled a lawsuit that it had filed against a Sonic drive-in restaurant in Athens, Georgia. The EEOC filed suit in U.S. District Court for the Middle District of Georgia alleging that a female carhop was subjected to sexually charged comments, repeated sexual overtures and unwelcome touching from the store manager. The complaint alleged that as a result of the harassment, "the conditions of her employment were made so intolerable that she was forced to resign her position."

On April 15, 2010, after almost two years of litigation, the EEOC reported that the restaurant agreed to settle the lawsuit and sign a consent decree, agreeing to pay $70,000 and to implement equal opportunity training, reporting and postings at the work place.

Under Title VII of the Civil Rights Act of 1964 (Title VII), sexual harassment is a type of discrimination that is based on sex. Requests for sexual favors, unwelcome sexual advances, verbal comments and physical conduct of a sexual nature may all constitute sexual harassment. Under Title VII, in order to be actionable the harassment must be unwelcome and must unreasonably interfere with a person's work performance.

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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" »

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, 8071998) 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" »

Basic Energy Services, a Texas-based oil well contractor, has agreed to pay $250,000 to settle a sex discrimination and retaliation suit brought by the U.S. Equal Employment Opportunity Commission ("EEOC"). The lawsuit alleged that the company discriminated against a former field attendant because of her sex and then fired her because she complained about sexual harassment and a promotion denial.

According to the complaint, which was filed in U.S. District Court for the Western District of Louisiana, the plaintiff Tawnya Smith alleged that she was subjected to months of sexual harassment by her immediate supervisor and, when she filed a charge of discrimination with the EEOC, the company discharged her in retaliation. The complaint also alleged that Basic Energy Services denied Smith, who worked for the company as a field disposal attendant, a promotion to field supervisor in 2006 because of her gender.

As part of the settlement, the company agreed to pay Tawnya Smith $250,000 in damages. They also agreed to post and disseminate new anti-discrimination and anti-retaliation policies and have many of its corporate officers and managers undergo annual training on sex discrimination and the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964. The company also agreed to develop and implement a recruiting and/or job training program designed to increase a pool of female candidates for promotion in all the company's field positions over the next three years.

The EEOC's regional attorney in Houston, Texas stated that "This resolution not only benefits Ms. Smith, but also serves the interests of all working women, particularly in industries and jobs that remain dominated by men. This suit reminds employers yet again that, regardless of the industry or job in question, qualified female workers must be granted the same opportunities as qualified males and be free to work without bias, harassment or fear of retaliation. Employers who refuse to grant female workers equal opportunities in the workplace and retaliate against them for lodging discrimination complaints clearly do so at their peril."

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