Can Employees Who Work Remotely Be Subjected To Unlawful Sexual Harassment?

For more than two decades, our sexual harassment lawyers in Citrus County, Florida have fought for the rights of sexual harassment victims. Having litigated sexual harassment cases in Florida courts for years, our Inverness, Florida sexual harassment lawyers know that a common employment law myth is employees who work remotely do not have viable sexual harassment claims. An employment law myth perpetuated, if not created, by employers who routinely argue that employees who work remotely cannot as a matter of law work in a hostile environment. In other words, employers maintain that unless employees have physical interaction with their sexual harasser in the workplace, the sexual harassment they endure does not alter the conditions of their employment and create an abusive working environment.

In this article, our sexual harassment lawyers in Citrus County, Florida explain how the decision in Frotten v. INT Technologies, LLC, Case No. 16-03289 (D. Ariz. May 21, 2018) demonstrates that employees who work remotely have the same protection from sexual harassment as employees who work in an office, and, just like employees who work in an office, employees who work remotely have viable sexual harassment claims when they experience severe or pervasive sexual harassment that alters the conditions of their employment.

Proving A Hostile Work Environment

Title VII of the Civil Rights Act of 1964 (“Title VII”) makes sexual harassment an unlawful employment practice. To prove a hostile work environment in violation of Title VII, a sexual harassment victim must show that the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive or hostile working environment. As observed by the court in Nichols v. Azteca Rest. Enters., 256 F.3d 864 (9th Cir. 2001), “the required level of severity varies inversely with the pervasiveness or frequency of the conduct.” When assessing whether a particular environment is abusive or hostile, courts consider all the circumstances of the sexual harassment victim’s working environment.

As the court in Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000) explained, “there is neither a threshold magic number of harassing incidents that gives rise, without more, to liability as a matter of law, nor a number of incidents below which a [victim] fails as a matter of law to state a claim.” Indeed, an assessment of whether sexual harassment is sufficiently severe or pervasive to create an abusive or hostile working environment, as the U.S. Supreme Court in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) observed, “is not, and by its nature cannot be, a mathematically precise test.” Indeed, as pointed out by the court in Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000, a single incident of sexual harassment “may be sufficiently severe so as to alter the conditions of employment and give rise to a hostile work environment claim.”

Sexual Harassment Lawsuit

In Frotten, a man named Frotten brought a sexual harassment claim against his former employer, INT Technologies, LLC (“INT”), pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”). Frotten alleges that he was required to work in a sexually hostile environment in violation of Title VII.

Frotten worked as a technical recruiter at INT. Frotten alleges sexual harassment by members of INT’s leadership team, including a man named Moloney, a man named Knott, and a woman named Ellestad. Ellestad was Frotten’s immediate supervisor.

Frotten claims that the sexual hostile working environment began when he attended training session at which employees were required to participate in an icebreaker game. As part of the game, each employee had to email a “secret” about themselves. Employees had to guess which employee submitted which secret. One employee submitted a secret stating, “I had sex in a [public place],” and the other employees, including Frotten, had to ask each other at the meeting if they had sex in a public place. Frotten alleges that Knott, Moloney, and Ellestad were present at the ice-breaker game, and a witness testified that they laughed at this “sex in a [public place]” entry. At the mandatory dinner following the training session, Frotten claims that Moloney and Ellestad engaged in explicit sexual banter.

Following the training session, Frotten worked virtually from his home and reported to Ellestad, who resided in another state. Although he worked remotely, Frotten participated in weekly conference calls with INT management, sales managers, and recruiters. Frotten maintains that these conference calls were replete with “sexually driven” and “offensive comments,” often made by INT’s leadership and in the presence of Knott. Other employees assert that inappropriate sexual banter by INT’s leadership team was commonplace on company conference calls and occurred often in the presence of Knott. On a separate work phone call with Ellestad, Frotten contends that Ellestad described having sex with her husband, Moloney, on her honeymoon.

In an email exchange, Frotten asserts that Knott, Moloney, and Ellestad made sexual jokes involving a veteran. At a second training session conducted by Ellestad, Frotten alleges that Ellestad rubbed her breast against his left arm. Frotten further alleges that, as he prepared to leave that training session, Ellestad instructed him in a sexual tone to meet her in her hotel room the following day. Frotten claims that the alleged breast rubbing incident, followed by the purported hotel room comment, was “the straw that broke the camel’s back.” Around the same time, Frotten asserts that he received an email from a co-worker in which she described how Moloney pretended to unzip his pants while saying he was going to teach her how to keep her job.

Remote Worker Gets Jury Trial

INT filed a motion with the trial court seeking dismissal of Frotten’s sexual harassment claim. In seeking dismissal, INT argued that Frotten’s hostile work environment claim failed because Frotten worked remotely and had only two physical interactions with Ellestad during his time at INT. The trial court denied INT’s motion for dismissal and ruled that Frotten was entitled to proceed to a jury trial on his hostile work environment claim. In denying INT’s motion for dismissal, the trial court explained that INT’s argument “inappropriately minimizes the court’s obligation to look to all the circumstances when assessing the severity or pervasiveness of the alleged harassment.” “This is especially true,” the trial court explained, where Frotten “presents evidence that a principal means of communication with INT’s leadership team—namely, phone calls and emails—was littered with sexual language and innuendos.” “The fact that INT’s leadership frequently laughed at and made [sexual] remarks,” the trial court further explained, “suggests that INT condones such behavior.”

Citrus County Sexual Harassment Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our sexual harassment attorneys in Citrus County, Florida have represented sexual harassment victims for more than twenty years. If you have experienced sexual harassment as a remote worker or have questions about your protection from sexual harassment as a remote worker, please contact our office for a free consultation with our sexual harassment lawyers in Citrus County, Florida. Our employee rights law firm takes sexual harassment cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.