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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog.

Can Employers Attempt To Remedy Sexual Harassment Through Actions Targeted At The Victim?

Sexual harassment, touch and uncomfortable with a business man putting a hand on the shoulder of a woman colleague. Exploitation, unprofessional and victimization with an employee touching a coworker.

Through their decades of experience representing sexual harassment victims, our sexual harassment lawyers in Citrus County, Florida know that employers often attempt to remedy sexual harassment through actions targeted at the victim, not at the harasser. For example, employers attempt to remedy the sexual harassment by forcing victims to work different schedules than the harasser or transferring victims to a different location away from the harasser. Under such circumstances, the price victims pay for complaining about sexual harassment is to have their lives disrupted and to be punished for the conduct of the harasser. In this article, our sexual harassment lawyers in Citrus County, Florida explain how the decision in Walker-Jackson v. Smith’s Food and Drug Centers, Inc., Case No. 21-cv-2066 (D. Nev. May 23, 2023) shows that sexual harassment must be remedied through actions targeted at the harasser, not at the victim.

Protection From Sexual Harassment

Title VII of the Civil Rights Act of 1964 (“Title VII”) protects employees from sexual harassment in the workplace. Title VII also imposes a remedial obligation on employers. Once an employer knows or should know of sexual harassment, Title VII requires the employer to take prompt, appropriate, and effective remedial action to prevent the harassment from recurring. The remedial action must be reasonably calculated to end the harassment. When an employer takes no remedial action, or the remedial action taken does not stop the harassment from recurring, the employer is liable for creating and maintaining a sexually hostile work environment in violation of Title VII.

To be appropriate under Title VII, the remedial action taken by the employer must not adversely affect the terms or conditions of the victim’s employment. In other words, as the court in Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) determined, “the victim of sexual harassment should not be punished for the conduct of the harasser.” For example, the Ellison court explained, “a victim of sexual harassment should not have to work in a less desirable location as a result of an employer’s remedy for sexual harassment.” When the remedial action taken by the employer adversely affects the terms or conditions of the victim’s employment, courts generally rule that the remedial action was insufficient under Title VII.

Sexual Harassment Lawsuit

In Walker-Jackson, a woman named Walker-Jackson brought a sexual harassment lawsuit against her employer, Smith’s Food and Drug Center, Inc. (“Smith’s”), pursuant to Title VII. Walker-Jackson claims that she was required to work in a sexually hostile environment in violation of Title VII.

In February 2008, Walker-Jackson was hired by Smith’s. In July 2018, Walker-Jackson began working at Smith’s Store 319. About one week after she began working at Store 319, Walker-Jackson claims that a co-worker, Robson, began subjecting her to unwanted sexually harassing behavior. The sexual harassment, according to Walker-Jackson, began with verbal sexual innuendo, verbal sexual advances, and nonconsensual touching. In December 2019, Walker-Jackson lodged a sexual harassment complaint with Smith’s HR representative, Chapman. Chapman allegedly told Walker-Jackson that Robson was “just creepy,” and instructed Walker-Jackson to “not do anything.” No disciplinary action was taken against Robson.

In January 2019, Walker-Jackson transferred to Store 366 due to Robson’s behavior. In August 2019, Robson began working at Store 366. Walker-Jackson claims that Robson’s sexual behavior towards her escalated at Store 366, including forced kissing and nonconsensual message. Walker-Jackson complained to her supervisor about Robson’s alleged sexual behavior. On September 30, 2019, Smith’s issued a written warning to Robson. The “reason for the warning” was that Robson “violated the sexual harassment and other forms of harassment policy that was put in place.” The warning required Robson to redo training pertaining to the harassment policy and re-read and sign the policy before his next working shift.

Around September 30, 2019, Walker-Jackson also reported Robson’s alleged sexual behavior to a hotline Smith’s provided for reporting sexual harassment. In response to her complaint, an employee of Smith’s, Spicer, offered to transfer Walker-Jackson to another store. Walker-Jackson refused, perceiving such a transfer to be punishment. Spicer offered to move Walker-Jackson to a later shift, but Walker-Jackson refused and inquired why Robson’s hours would not be moved instead.

In October 2019, Walker-Jackson filed another complaint against Robson with Smith’s Human Resources Department. Walker-Jackson complained that Robson was around her “work area more often” and continuously staring at her. Walker-Jackson’s characterized Robson’s behavior as intimidating and hostile. On August 31, 2020—nearly eleven months after Walker-Jackson filed her second complaint—Smith’s issued Robson a second warning and suspended him. About a week later, Smith’s fired Robson.

Remedial Action Cannot Punish Victim

Smith’s filed a motion with the trial court seeking dismissal of Walker-Jackson’s sexual harassment claim. In moving for dismissal, Smith’s argued that it was not liable for any sexually harassing behavior that Walker-Jackson experienced because it took prompt, appropriate, and effective remedial action to stop Robson’s harassment. In support of its argument, Smith’s pointed out that Robson was subjected to two written warnings, suspension, and termination. The trial court denied Smith’s motion for dismissal and ruled that Walker-Jackson had presented sufficient evidence to establish that Smith’s failed “to stop Robson’s harassment and prevent it from recurring.”

In denying Smith’s motion for dismissal, the trial court focused on three pieces of evidence. First, the trial court determined that a “jury could find that Smith’s response of offering Walker-Jackson a transfer from Store 366 to another store or changing her work hours unreasonably burdened Walker-Jackson.” Under Title VII, the trial court explained, “harassment is to be remedied through actions targeted at the harasser, not at the victim.” Second, the trial court determined that jury could find that “Smith’s action of issuing a written warning to Robson was ineffective because Robson did not elect to cease his harassment of Walker-Jackson.” Finally, the trial court determined that “a jury could find that Smith’s eventual suspension and firing of Robson—occurring more than two years after Robson’s verbal harassment initially began—was too little too late.”

Citrus County Sexual Harassment Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our sexual harassment attorneys in Citrus County, Florida have dedicated their practice to fighting for the rights of sexual harassment victims. If you have been sexually harassed at work or have questions about your rights as a sexual harassment victim, 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.

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