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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.

Does Separating A Sexual Harasser & The Victim At Work Immunize Employers From Liability?

sexual harassment conceptwith businessman touching fermale colleague on the shoulder

Having litigated sexual harassment cases for more than two decades, our sexual harassment lawyers in Citrus County, Florida know that employers almost never acknowledge their failure to protect employees from sexual harassment. Even when a sexual harassment victim continues to endure sexual harassment after lodging complaint, employers invariably attempt to persuade courts they are not liable for any sexual harassment that occurred before or after the victim’s complaint because they took corrective action reasonably calculated to end the harassment. In other words, according to employers, virtually any corrective action they take in response to a complaint immunizes them from liability for sexual harassment because any such corrective action was reasonably calculated to end the harassment. By way of example, employers routinely maintain that investigating the victim’s sexual harassment complaint, subjecting the harasser a stern warning, reviewing their sexual harassment policy with the harasser and other employees, or separating the harasser and victim at work immunize them from liability for sexual harassment—even when the sexual harassment continues after the victim’s complaint.

In this article, our sexual harassment lawyers in Citrus County, Florida explain how the decision in Mellinger v. Braithwaite, Case No. 18-5838 (W.D. Wash. July 31, 2020) illustrates that simply separating the harasser from the victim does not immunize employers from liability for sexual harassment when the harassment continues after a complaint from the victim.

Employers’ Duty To Stop Sexual Harassment

Title VII of the Civil Rights Act of 1964 (“Title VII”) protects employees from sexual harassment in the workplace. In order to protect sexual harassment victims and eradicate sexual harassment at work, Title VII imposes a remedial obligation on employers. Once an employer knows or should know of sexual harassment, the employer is required to take prompt and effective remedial action. Courts have determined that an employer’s remedial action must be reasonably calculated to end the harassment. When an employer takes no remedial action, or the remedial action does not end the harassment, the employer is liable under Title VII for creating and maintaining a sexually hostile working environment.

Sexual Harassment Lawsuit

In Mellinger, a woman named Mellinger brought a sexual harassment claim against her former employer, the Secretary of the Navy (“the Navy”), pursuant to Title VII. Mellinger alleges that, during her employment with the Navy, she was sexually harassed in violation of Title VII.

In August 2015, Mellinger began working in the painting shop for the Navy at a naval shipyard. Mellinger alleges that a male co-worker, Nadede, began sexually harassing her during the first week after she finished training. Mellinger asserts that Nadede constantly made sexual jokes and asked questions about her sex life. Mellinger described comments Nadede allegedly made such as “I bet your boyfriend must be really good in bed to keep you around,” followed by “I wish I had someone like you.” Mellinger described an incident where Nadede allegedly showed her a picture of his wife and in response to her comment that his wife was beautiful and he was lucky, Nadede stated “she’s ok, it would have been better if I would have waited and found you.” Mellinger claims that these statements were specific examples of conversations which “happened quite often.”

Mellinger further alleges that she would catch Nadede staring at her behind whenever she was not looking. She asserts that Nadede asked her whether she had been working out because her behind looked bigger. Nadede, according to Mellinger, also told her that she had “good hips and a big butt.” Mellinger maintains that when she told Nadede that her knees were hurting, Nadede allegedly replied, “well maybe you shouldn’t spend so much time on your knees.” After she tried to change the subject, Mellinger asserts that she commented on a twinge she felt in her back and Nadede allegedly replied, “well we all know women spend a lot of time on their backs.”

Employer Separates Employees

On April 21, 2016, one day after Nadede allegedly made sexual comments about Mellinger spending too much time on her knees and back, Mellinger complained to her supervisor, Austin, that Nadede was sexually harassing her. Mellinger asserts that she told Austin to talk to Nadede and to make the sexually harassing behavior stop. Mellinger testified that this was the first time she had told anyone at the Navy about Nadede’s sexual comments. Mellinger alleges that the Navy did not initiate an investigation into her sexual harassment complaint. Instead, a stand-in supervisor, Jones, assured her that she would not be assigned to work in Nadede’s presence pending an investigation.

On April 25, 2016, Mellinger claims another supervisor, Bryant, assigned her to work in an area in close proximity to Nadede. Mellinger alleges that while they were working in close proximity, Nadede stared at her behind. Mellinger asserts that she left the work area, waited for Austin for almost an hour, and when he did not appear, talked to Bryant. Mellinger contends that she told Bryant that she had been told she was not supposed to be working with Nadede. Bryant testified that he had been told to keep Mellinger and Nadede apart and did not recall having Mellinger work alongside Nadede. According to Mellinger, Bryant responded, “it’s fine, go back to work.” Mellinger alleges that she when she went back to work, she made every effort to avoid Nadede, but he continued to stare at her.

Sexual Harassment Must Stop

The Navy filed a motion with the trial court seeking dismissal of Mellinger’s sexual harassment claim. In moving for dismissal, the Navy argued that it was not liable for any sexual harassment Mellinger experienced because once Mellinger complained of the harassment, the Navy took corrective action that was reasonably calculated to end the harassment by separating Mellinger and Nadede in the workplace. In response to the Navy’s position, Mellinger argued although the Navy responded to her complaint by planning to keep her and Nadede apart in the workplace, the plan was not reasonably calculated to stop the harassment because the harassment continued after the plan was implemented. The trial court agreed with Mellinger and ruled that Mellinger was entitled to proceed to a jury trial on her sexual harassment claim. The trial court reasoned that although the Navy sought to prevent the sexual harassment from continuing by separating the two employees, the sexual harassment in fact did continue after the Navy separated them. Because the harassment continued after the Navy separated the employees, the trial court concluded, a reasonable jury could find that the Navy’s corrective action was not reasonably calculated to end the harassment.

Citrus County Sexual Harassment Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our sexual harassment attorneys in Citrus County, Florida have fought for the rights of sexual harassment victims for more than two decades. If you have been sexually harassed at work or have questions about your protection from sexual harassment under federal employment discrimination law, 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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