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Can Employers Defeat Sexual Harassment Claims By Showing The Victim Engaged In Flirtatious Behavior?

Sexual Harassment At Workplace. Businesswoman

For more than twenty years, our Marion County, Florida sexual harassment attorneys have fought for the rights of sexual harassment victims. Having substantial experience representing sexual harassment victims, our Ocala, Florida sexual harassment lawyers know that employers routinely defend sexual harassment claims by arguing that the harassment was not unwelcome. In support of their argument, employers point to or manufacture evidence about the sexual harassment victim’s language, manner of dress, or flirtatious behavior, and contend that such behavior demonstrates that the victim welcomed the sexual harassment. In this article, our Marion County, Florida sexual harassment attorneys explain how the decision in Nosik v. All Bright Dentistry, LLC, Case No. 2:18-cv-00972 (D. Nev. March 29, 2021) demonstrates that sexual harassment victims do not forfeit their protection from workplace sexual harassment simply by engaging in flirtatious behavior.

Protection From Sexual Harassment

Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII). To prevail on a claim of hostile work environment sexual harassment, an employee must show that the sexual harassment was unwelcome. As the U.S. Supreme Court in Meritor Sav. Bank v. Vinson,  488 U.S. 57, 58 (1986) observed, “the question [of] whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the [jury].” In Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982), the court explained that conduct is unwelcome when “the employee did not solicit it or incite it, and . . . the employee regards the conduct as undesirable or offensive.” In determining whether the behavior is unwelcome, courts consider whether the sexual harassment victim indicated by her conduct that the harassment was unwanted. The most powerful way for a sexual harassment victim to establish that harassment is unwelcome is by complaining about the behavior.

Sexual Harassment Lawsuit

In Noskik,  a woman named Nosik brought a sexual harassment claim against her former employer, All Bright Family Dentistry, LLC (All Bright). Nosik claims that she was subjected to a hostile work environment sexual harassment in violation of Title VII.

Nosik alleges that during her employment, the owner of All Bright repeatedly made unwanted sexual advances toward her. Nosik points to three discrete incidents of sexual harassment. First, Nosik contends that in October 2015, the owner approached her in his office while he was intoxicated, pulled down her tank top shirt, ripped her tank top, and grabbed her breasts. Second, Nosik alleges that the owner took her and other female employees to a Christmas party. Nosik claims that the owner pressured her into going to the party and that while everyone was in the limousine on their way to the party, the owner took off his clothes, grinded on Nosik, and asked her, “don’t you want all of this baby?” Finally, Nosik maintains that after the staff returned to the office following the Christmas party, the owner propositioned her to have sex with him.

In addressing the issue of whether the owner’s alleged sexual behavior was unwelcome, Nosik testified that the owner’s conduct made her “uncomfortable,” that she did not want to have sex with the owner, that she had to “keep [the owner] happy” to keep her job,” and that she only ever spoke about her dating life while at work in order to get the owner to “back off.” Although the owner denied making any sexual advances towards Nosik, All Bright argued that Nosik’s “provocative speech, relentless talk of sexual experiences, inappropriate messages to [the owner], and dress” demonstrates that Nosik welcomed sexual advances from the owner.

Flirting Does Not Make Harassment Welcomed

All Bright filed a motion with the trial court seeking dismissal of Nosik’s sexual harassment claim. In doing so, All Bright maintained that Nosik’s sexual harassment claim failed as a matter of law because she welcomed the owner’s alleged sexual behavior. The trial court denied All Bright’s motion for dismissal and ruled that whether the owner’s alleged sexual conduct was unwanted involved credibility questions that were for a jury, not the court as a matter of law, to resolve.

In support of its conclusion that Nosik was entitled to a jury trial on her sexual harassment claim, the trial court observed that although there was evidence that Nosik “may have failed to object” to the owner’s alleged sexual advances, “as well as evidence that [Nosik] appeared happy with her work environment and her relationship with [the owner], this evidence is not dispositive of whether [the owner’s] alleged conduct was unwanted.” Rather, the trial court reasoned, “a reasonable jury could find that [Nosik’s] amendable or flirtatious behavior was consistent with her testimony that she aimed ‘to keep [the owner] happy’ and feared she would have been fired if she dared rebuff [the owner].” Courts, the trial court explained, “routinely” refuse to dismiss sexual harassment claims “where there is evidence that a [sexual harassment victim] may have condoned or welcomed sexual advances in an effort to avoid negative job consequences.”

Free Consultation For Harassment Victims

One of the most important decisions sexual harassment victims must make is which employment law attorneys to consult with regarding their legal rights. As part of our law firm’s commitment to fighting for the rights of sexual harassment victims, an experienced employment law attorney will speak with you personally and you will receive the individualized attention your case deserves. We offer free confidential case evaluations for employees, and you will not have to pay to speak with our employment law attorneys regarding your rights as a sexual harassment victim. We are available for consultation at your convenience, including scheduling telephone consultations for evenings and weekends.

Marion County, FL Sexual Harassment Lawyers

Based in Ocala, Florida, and representing workers throughout Florida, our sexual harassment attorneys in Marion County, Florida have litigated sexual harassment cases in Florida courts for more than two decades. If you have been subjected to unwanted sexual advances 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 Marion 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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