Sexual harassment can occur in the workplace, but also outside of the workplace. Employers may be liable for sexual harassment that occurs in either of these situations. Arming yourself with the tools to spot these instances, knowing what the potential legal ramifications may be, and applying best practices to avoid these situations can mitigate legal liability.
- What constitutes sexual harassment?
Sexual harassment claims may be brought in State or Federal courts. In Florida, the Civil Rights Acts of 1992 prohibits discrimination in employment, public lodging, public food service, and private clubs. Title VII of the Civil Rights Act of 1964 is the Federal Statute that makes it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment.” Both the Federal and Florida law only applies to employers with at least 15 employees. The Florida law mirrors much of the Federal Statute but provides protections for more “protected groups,” such as disabled persons.
There are two types of sexual harassment recognized by the courts: (1) quid-pro-quo; and (2) hostile work environment. Quid pro quo harassment usually involves the offer of some economic benefit, which is conditioned upon the acceptance of some form of sexual favor or advance. The economic benefit may be the offer of a promotion, better work environment, or better compensation. An employee must show that the employee’s refusal to submit to a supervisor’s sexual demands results in a tangible job detriment, such as refusal to hire, dismissal, denial of a raise or promotion, demotion, withholding or withdrawal of benefits, docking of pay, and undesirable reassignment or transfer resulting in a significant change in an employee’s duties.
A hostile work environment involves verbal or physical behavior of a sexual nature that is pervasive and unreasonably interferes with an employee’s work, or creates an intimidating, hostile, or offensive working environment. Under Florida’s Civil Rights Act, to establish a hostile work environment caused by a co-worker, the claimant must prove:
- That he or she belongs to a protected group;
- That the employee was subjected to unwelcome sexual harassment;
- That the harassment was based on the sex of the employee;
- That the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and
- A basis for holding the employer liable.
Where the employee’s claim alleges sexual harassment by a direct supervisor, the employee does not have to prove the element requiring a basis for holding the employer liable.
The harassed employee is not the only person that can sue under the hostile work environment prong. An employee who has personal knowledge of harassing behavior towards another employee can bring a claim for a hostile work environment, provided they can show these incidents affected the worker’s psychological well-being.
- What liability can an employer face?
Under Title VII, an employer is strictly liable for quid pro quo harassment by a supervisor that culminates in a tangible employment action against the harassed worker, whether or not the employer knew about it. An employee must show that the employee’s refusal to submit to a supervisor’s sexual demands results in a tangible job detriment.
With regard to a hostile work environment claim involving no tangible job action, the employer is only presumed liable for a supervisor’s harassment. An employer can also be liable for alleged sexual harassment from other employees, and even customers, if the supervisor knew or should have known of the offensive work environment but failed to take any remedial action. Similarly, Florida law requires this level of proof to impose liability on an employer for a co-worker’s sexual harassment.
- Sexual Harassment Outside the Workplace
Employers may host happy hour for their employees, conferences, work trips, and holiday parties. Because these activities have some connection to the workplace, an employer may still be liable for sexual harassment if they knew or should have known of the harassing behavior at these functions. Courts have rationalized that if harassing conduct occurs outside the workplace, the complainant will have to face the harasser at work, which may create a hostile work environment.
This can also include social media posts that cross the line and contain offensive messages that cause a hostile work environment. According to state and federal laws, discriminatory or sexual comments to a colleague online or in the workplace can still be considered workplace harassment. The following may qualify as harassment on social media:
- Unwanted contact between parties
- Offensive gestures
- Suggestive comments
- Images
- Cyberstalking
- Jokes
- Posting about a person without their consent
- Threats, demands, or promises to coerce particular behavior or actions
- What can employers do to protect the Company.
Employers should have clear anti-harassment policies and procedures in place, follow these policies, and they should promptly investigate and take appropriate action when they become aware of any allegations of harassment, all on a consistent basis, regardless of where it occurred. Proper training, including seminars, for all supervisors and employees should also be a regular business practice.
If your company needs assistance in drafting policies or has questions about an employee’s behavior, please call us to receive guidance on your rights and options. Laws can change, and legal interpretations can vary, so it’s essential to seek professional legal advice to fully understand your situation.
Bruce E. Loren, and Lucia E. DeFilippo of the Loren & Kean Law Firm are based in Palm Beach Gardens and Fort Lauderdale. Loren & Kean Law is a boutique law firm concentrating in construction law, employment law, and complex commercial litigation. Mr. Loren has achieved the title of “Board Certified in Construction Law” by the Florida Bar, exemplifying the Bar’s recognition of this expertise. The firm’s construction clients include owners/developers, general contractors, specialty contractors in every trade, suppliers and professional architects and engineers. Mr. Loren and Mrs. DeFilippo can be reached at [email protected]or [email protected] or 561-615-5701
