CENTRAL FLORIDA SEXUAL HARSSMENT ATTORNEYS BASED IN OCALA, FLORIDA
In 1986, the U.S. Supreme Court held that sexually harassing behavior in the workplace which is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile work environment is unlawful. More than thirty years later, sexual harassment in the workplace persists as a serious problem. Despite a legal mandate to eradicate sexual harassment in the workplace, employers still consistently fail to take appropriate action to prevent and promptly correct sexual harassment. Employers also continue in their refusal to take action designed to protect sexual harassment victims, such as by conducting reasonable, good faith investigations into sexual harassment complaints and preventing sexual harassment from recurring by punishing sexual harassers with something more than a verbal warning. For more than 15 years, our Central Florida sexual harassment attorneys have been helping employees who have endured the economic and psychological ordeal of sexual harassment. We will use employment laws to fight for your rights and hold your employer accountable for the hostile work environment harassment.
Laws Prohibiting Sexual Harassment
Under Title VII of the Civil Rights Act of 1964 (Title VII), which is federal law, and the Florida Civil Rights Act (FCRA), which is Florida law, it is an unlawful employment practice for an employer to discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment because of sex. Sexual harassment is a form of sex discrimination prohibited by Title VII and the FCRA. Sexual harassment which is sufficiently severe or pervasive to alter the terms and conditions of the victim’s employment and create a hostile working environment violates Title VII and the FCRA. As explained by the U.S. Supreme Court in Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986), employees are not required to run a “gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living.” Both men and women are protected against sexual harassment in the workplace. Employees are protected against sexual harassment by co-employees, supervisors, managers, owners, clients and customers.
Types Of Behavior Constituting Sexual Harassment
The types of behavior constituting sexual harassment in the workplace can take a variety of forms. Generally, sexual harassment involves verbal or physical behavior of a sexual nature. The types of verbal and physical behavior of a sexual nature constituting sexual harassment include:
- * Sexual advances, sexual demands, or sexual propositions.
- * Requests for sexual favors.
- * Comments about the victim’s body, body parts, clothing, or physical appearance.
- * Unwanted touching, grabbing, fondling, or kissing.
- * Efforts to look or peak underneath the victim’s clothing.
- * Inquiries into the victim’s sex life.
- * Unwanted romantic interest.
- * Sexual remarks, sexual discussions, or sexually oriented banter.
- * Sexual, crude, or obscene jokes.
- * Sexual innuendos.
- * Remarks about sexual acts or experiences.
- * Sexually explicit e-mails or text messages.
- * Pornographic pictures or videos.
- * Sexually oriented pictures, calendars, or cartoons.
- * Acts of physical aggression or violence.
- * Quid pro quo sexual harassment.
Quid Pro Quo Sexual Harassment
Quid pro quo is a Latin phrase which means “this for that.” In the sexual harassment context, quid pro quo sexual harassment occurs when submission to or rejection of a supervisor’s sexual behavior, such as sexual advances, requests for sexual favors, or sexual demands, is used as the basis for an employment decision with respect to the victim. As explained by the U.S. Second Circuit Court of Appeals in Jin v. Metropolitan Life Ins. Co., 310 F.3d 84 (2d Cir. 2002), “[r]equiring an employee to engage in unwanted sex acts is one of the most pernicious and oppressive forms of sexual harassment that can occur in the workplace.” In Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court characterized quid pro quo sexual harassment as “appalling” and “especially egregious.” As observed by the U.S. Ninth Circuit Court of Appeals in Nichols v. Frank, 42 F.3d 503 (9th Cir. 1994), “most workers subjected to sexual pressure in the workplace have little means of defense—other than the law” because “for economic reasons, most workers cannot simply abandon their employment—new jobs are hard to find.” Thus, as emphasized by the Second Circuit in Karibian v. Columbia Univ., 14 F.3d 773 (2d Cir. 1994), Title VII should not be read “to punish the victims of sexual harassment who surrender to unwelcome sexual encounters.”
Courts have determined that only a supervisor, or other person acting with the authority of the company, has the authority to employ the sort of coercion where submission to unwanted sexual advances becomes a condition of the victim’s employment. As explained by the U.S. Eleventh Circuit Court of Appeals in Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th Cir. 1989), “[w]hen a supervisor requires sexual favors as quid pro quo for job benefits, the supervisor, by definition, acts as the company.” In the quid pro quo sexual harassment context therefore, the harasser’s status as a supervisor is critical because a supervisor, unlike a co-employee, has the authority to make employment decisions affecting the compensation, terms, conditions, or privileges of the victim’s employment. In conditioning job-related benefits or avoidance of job-related reprisals on the victim’s submission to sexual demands, the supervisor is using his or her supervisory authority to impose changes in the victim’s employment status.
Favorable Employment Decision
The employment decision affecting the victim on which submission to or rejection of a supervisor’s sexual behavior may be a favorable employment decision, such as a promised increase in pay, increase in hours, or promotion. For example, the supervisor promises the victim an increase in pay or a promotion if she complies with his sexual demands. Similarly, the supervisor tells the victim that her record of consistent pay increases or promotion is dependant upon her accepting his sexual advances. Likewise, the supervisor states that he will recommend that the victim receive an increase in pay or promotion if she submits to performing sexual acts.
Unfavorable Employment Decision
The employment decision affecting the victim on which submission to or rejection of a supervisor’s sexual behavior may be an unfavorable employment decision, such as a reduction in hour, economically disadvantageous work schedule, or termination. For example, the supervisor demotes or fires the victim because of her refusal to submit to the supervisor’s sexual demands or requests for sexual favors. Similarly, the supervisor unfavorably varies the victim’s employment conditions, such as her hours or pay, based on her responsiveness to the supervisor’s sexual advances. Likewise, after the victim ends a consensual relationship with the supervisor, the supervisor demotes or fires the victim because she refuses to resume the relationship or surrender to unwelcome sexual encounters.
Threatened Employment Decision
Quid pro quo sexual harassment also includes a threatened employment decision if the victim does not submit to or rejects a supervisor’s sexual advances or request for sexual favors, such as threats to reduce the pay, demote, or fire the victim. For example, the supervisor explicitly conditions the victim’s continued employment on her participation in unwanted sexual acts. Likewise, the supervisor threatens to demote, withhold paychecks, or fire the victim if she does not succumb to his sexual demands. Similarly, the supervisor threatens to terminate the victim if she does not comply with his demands to not complain about his sexual behavior.
Implicit Quid Pro Quo Harassment
A victim is not required to prove that a supervisor explicitly conditioned job-related benefits or avoidance of job-related reprisals on the victim’s submission to sexual demands. Rather, quid pro quo sexual harassment may also occur implicitly. In order to establish implicit quid pro quo harassment, the Ninth Circuit in Holly D. v. California Inst. of Tech., 339 F.3d 1158 (9th Cir. 2003) determined that it is sufficient to show that a “reasonable person in [the victim’s] position” would have believed that a job-related benefit or avoidance of a job-related reprisal “depended on fulfilling [the supervisor’s] sexual demands.” To prove that a supervisor implicitly conditioned a job-related benefit or avoidance of a job-related reprisal on submission to sexual acts, the Holly D. court also determined that the victim must show that a link to a job-related benefit or avoidance of a job-related reprisal “could reasonably be inferred under the circumstances.”
Implicit quid pro quo sexual harassment generally occurs when a supervisor discusses the victim’s employment status or future during the same time period that the supervisor is making sexual advances or sexual demands on her. The intertwining of job-related benefits or avoidance of job-related reprisals and sexual favors may take place during a single discussion between the supervisor and victim. For example, when talking with the victim about her career advancement in the company, the supervisor tells the victim that if she “plays ball” or “plays her cards right” with him, she will get what she wants and if she doesn’t, then she has no future with the company. The intertwining of job-related benefits or avoidance of job-related reprisals and sexual favors may also take place a short time apart. For example, a supervisor continuously subjects the victim to sexual advances, and within hours of one of his sexual demands, the supervisor speaks with the victim about whether he will recommend her for a pay increase or promotion. In each example, a link to job-related benefits or avoidance of job-related reprisals could reasonably be inferred under the circumstances.
Non-Sexual Harassing Behavior
As explained by the court in Anderson v. Deluxe Homes of Pa., Inc., 131 F.Supp.2d 637 (M.D. Pa. 2001), “sexual harassment can take different forms, both sexual and non-sexual.” Thus, prohibited sexual harassment is not limited to circumstances involving behavior explicitly sexual in nature, such as sexual remarks, sexual advances, or requests for sexual favors. Rather, prohibited sexual harassment also includes non-sexual behavior. As observed by the U.S. Fourth Circuit Court of Appeals in R & R Ventures, Inc., 244 F.3d 334 (4th Cir. 2001), a work environment involving “remarks that intimidate, ridicule, and maliciously demean the status of women [or men] can create an environment that is as hostile as an environment that contains unwanted sexual advances.” Consequently, non-sexual harassing behavior by itself can reach a sufficiently severe or pervasive level to create a hostile work environment.
The types of non-sexual behavior which can create or contribute to a hostile work environment include:
- * Gender-based derogatory remarks, insults, epithets, or jokes.
- * Sexist remarks.
- * Comments reflecting an anti-female or anti-male bias.
- * Remarks reflecting that a female employee failed to conform to societal expectations or stereotypes about how women should look or behave.
- * Remarks reflecting that a male employee failed to conform to societal expectations or stereotypes about how men should look or behave.
- * Treating the victim differently or less favorably from employees of the opposite sex.
In circumstances involving non-sexual harassing behavior, the victim is essentially claiming that if he or she had been a member of a different sex, then he or she would not have been treated in the same manner. In other words, as explained by the U.S. Supreme Court in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. (1998), the harassing behavior is motivated hostility towards members of a particular sex instead of sexual desire. For example, when a female employee’s work environment involves gender-specific epithets and gender-derogatory language, she is exposed to conditions of employment that are humiliating and degrading to women on account of their sex and, thus, endures a discriminatorily abusive working environment. As emphasized by the U.S. Eighth Circuit Court of Appeals in Carter v. Chrysler Corp., 173 F.3d 693 (8th Cir. 1999), “employees are entitled to a workplace free of discriminatory intimidation, ridicule, and insult motivated by the employee’s membership in a protected class.”
In some cases, a victim endures sexual and non-sexual harassing behavior. Under such circumstances, the sexual and non-sexual harassing behavior are part of the totality of circumstances constituting the victim’s work environment. Because courts examine the totality of the circumstances in determining whether a hostile work environment exists, courts consider both sexual and non-sexual harassing conduct in assessing a hostile work environment harassment claim. Moreover, non-sexual harassing behavior can create or contribute to a hostile work environment even if not directed specifically at the victim. Rather, non-sexual behavior targeted at other employees of the same sex or directed at men or woman as a group can be used to establish a hostile work environment claim.
Sexual Harassment Of Others In The Workplace
Because the determination of whether sexually harassing behavior is sufficiently severe or pervasive to create a hostile working environment depends on the totality of the circumstances of the victim’s work environment, a sexual harassment victim does not have to be the direct target of other instances of sexually harassing behavior in order to use those incidents in support of his or her hostile work environment claim. Rather, because the existence of a hostile work environment is assessed by looking at the workplace environment as a whole, a sexual harassment victim can use incidents of sexually harassment behavior against others in establishing that he or she worked in a hostile environment. For example, when the harasser touches other employees in the presence of the victim, makes comments about the body of other customers in the presence of the victim, or makes sexual remarks about others in the presence of the victim, the victim can use the incidents of sexual harassment in showing he or she was experienced a hostile work environment even though they did not directly involve the victim. Under such circumstances, the sexual harassment of others in the workplace contributes to the overall hostility of the working environment for the victim and becomes part of his or her working environment.
In order to constitute prohibited sexual harassment, the conduct must be unwelcome. As explained by the U.S. Eighth Circuit Court of Appeals in Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103 (8th Cir. 1998), sexually harassing conduct is considered unwelcome if it is regarded as “uninvited and offensive” by the victim. In determining whether the sexually harassing behavior is unwelcome, courts consider whether the victim indicated by his or her conduct that the harassment was uninvited and offensive. A victim can indicate by his or her conduct that the sexually harassing behavior is uninvited and offensive in many different ways including:
- * Telling the harasser not engage in the behavior or to stop the behavior.
- * Telling the harasser that the behavior is offensive, inappropriate, upsetting, disturbing, undesired, or unwanted.
- * Walking away and leaving the area when the harasser engages in the behavior.
- * Complaining to a supervisor or manager about the behavior.
- * Making a complaint about the behavior using the company’s complaint procedure for reporting sexual harassment.
An employer cannot establish that a victim welcomed sexually harassing behavior based on sexual conduct outside the workplace. As explained by the U.S. Tenth Circuit Court of Appeals in Winsor v. Hinkley Dodge, Inc., 79 F.3d 996 (10th Cir. 1996), “a person’s private and consensual activities do not constitute a waiver of his or her legal protections against unwelcome and unsolicited sexual harassment.” Likewise, as pointed out by the court in Scetla v. Delicatessen Support Servs., Inc., 89 F.Supp.2d 1311 (M.D. Fla. 2000), “the fact that [the victim] may have had, at one point in time, a consensual sexual relationship with a supervisor, does not provide that supervisor, or any other supervisor or co-worker, with a right to sexually harass [the victim].” Moreover, as the court in Rahn v. Junction City Foundry, Inc., 152 F.Supp.2d 1249 (D. Kan. 2001) observed, a sexual harassment victim’s “use of foul language or sexual innuendo in a consensual setting does not waive [his or her] legal protections against unwelcome harassment.”
Same-Sex Sexual Harassment
Prohibited sexual harassment under Title VII and the FCRA is not limited to harassment by members of the opposite sex. Rather, Title VII and the FCRA also prohibit same-sex sexual harassment. Same-sex sexual harassment occurs when both the harasser and the victim are of the same sex. Moreover, same-sex harassment is forbidden regardless of the harasser’s or victim’s sexual orientation. Thus, a claim for same-sex harassment is not dependant on the sexual orientation of the individuals involved. The requirements for establishing a claim of same-sex sexual harassment are the same as those for cases involving harassment by members of the opposite sex.
What Constitutes Actionable Sexual Harassment
In order to be actionable under Title VII and the FCRA, the sexually harassing behavior must be sufficiently severe or pervasive to alter the terms and conditions of the victim’s employment and create a hostile working environment. In determining whether sexually harassing behavior is sufficiently severe or pervasive to create a hostile working environment, the U.S. Supreme Court has instructed courts to look at the totality of the circumstances constituting the victim’s work environment. The totality of the circumstances approach means, as observed by the court in Colon v. Environmental Tech., Inc., 184 F.Supp.2d 1210 (M.D. Fla. 2001), that courts must view the victim’s work “environment as a whole even though no individual episode, viewed by itself,” is sufficient to create a hostile work environment. In other words, as the U.S. Eighth Circuit Court of Appeals explained in Hathaway v. Runyon, 132 F.3d 1214 (8th Cir. 1997), “a work environment is shaped by the accumulation of abusive conduct, and the resulting harm cannot be measured by carving it into a series of discrete incidents” and assessing the harm caused by each discrete incident.
Under the Supreme Court’s totality of the circumstances approach, the factors examined by courts in determining whether the harassment is severe or pervasive enough to create a hostile work environment include:
- * The frequency of the harassment.
- * The severity of the harassment.
- * Whether the harassment is physically threatening or humiliating or a mere offensive utterance.
- * Whether the harassment unreasonably interferes with the victim’s work performance.
Because of the totality of the circumstances test, courts consider the harassment by all perpetrators combined in determining whether the sexually harassing behavior is sufficiently severe or pervasive to create a hostile work environment. This means that in analyzing whether a victim has endured a hostile work environment, courts do not consider the harassing acts of one perpetrator separately from the acts of another perpetrator. Rather, all acts of harassment by all perpetrators are considered in assessing whether the harassment is sufficiently severe or pervasive to constitute a hostile working environment.
Protection Against Retaliation
As discussed more fully in our section pertaining to retaliation, employees are protected against retaliation when they complain about sexual harassment in the workplace. Florida and federal law prohibit employers from subjecting employees to an adverse employment action, such as reduction in pay or hours, demotion, denial of promotion, and termination, in retaliation for having complained about sexual harassment in the workplace.
Employment Law Blog
We offer more information about sexual harassment in our employment law blog.
Contact Us Today For A Free Initial Consultation
If you are experiencing or have experienced sexual harassment in the workplace, please contact us for a free initial consultation with our Central Florida sexual harassment attorneys. You will receive personalized and individual attention from our employment law attorneys. We have substantial experience litigating sexual harassment cases in state and federal court. Our employee rights law firm takes sexual harassment cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Based in Ocala, Florida and representing employees throughout Central Florida, we are ready to take your sexual harassment case and fight for your employee rights.