Sexual Harassment

Under Title VII of the Civil Rights Act, an employer is liable to its employee for a supervisor’s actions in requiring the employee to submit to the supervisor’s unwelcome sexual advances as a term or condition of employment, also known as quid pro quo sexual harassment. The Florida Civil Rights Act also prohibits quid pro quo sexual harassment. The FCRA is modeled after Title VII and is, therefore, subject to Title VII analysis.

Quid Pro Quo Sexual Harassment

This consists of unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to such conduct is made a term or condition of a person’s employment. It also includes the situation where an employee’s submission to or rejection of such conduct is used as the basis for an employment decision affecting the employee. 29 C.F.R. § 1604.11; Loos v. Club Paris, LLC, 684 F. Supp. 2d 1328, 1333 (M.D. Fla. 2010), on reconsideration in part (Feb. 16, 2010).

Hostile Work Environment

This occurs where there are no direct sexual advances physically or verbally.The employee must prove that the work environment was both subjectively and objectively hostile. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, it need not also be psychologically injurious. The objective severity of harassment is judged from the perspective of a reasonable person in the employee’s position, considering all the circumstances. Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808-09 (11th Cir. 2010).

For sexual harassment to create a hostile work environment under the Florida Civil Rights Act, the adverse effect on the employee must be subjective as well as objective; not only must the employee suffer from the harassment, but it must be likely that a reasonable person in the shoes of the employee would suffer from such conduct. Speedway SuperAmerica, LLC v. Dupont, 933 So. 2d 75 (Fla. 5th DCA 2006). In determining whether sexual harassment is sufficiently severe or pervasive to support a hostile work environment claim, the courts look at the totality of the course of conduct and not at micro-bites of behavior in isolation. Speedway SuperAmerica, LLC v. Dupont, 933 So. 2d 75 (Fla. 5th DCA 2006).

Common Law Claims

Potential claims in sexual harassment situations include “torts,” which are common-law claims of wrongdoing–usually not defined by statute but by case law. They include claims for intentional infliction of emotional distress, assault, battery, defamation, and negligent hiring, retention, and supervision.

Employer Responsibility

Under Title VII, an employer must promptly and adequately respond to an employee’s allegations of sexual harassment by immediately initiating an investigation of the allegation. Farley v. Am. Cast Iron Pipe Co., 115 F.3d 1548, 1555 (11th Cir. 1997). A prompt response by an authorized agent to halt reported harassment is sufficient to relieve the employer of liability under Title VII in cases where the harassment has not culminated in the taking by a supervisor of a tangible employment action against the victim. Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1369 (11th Cir. 1999).

An employer fulfills its duty by conducting extensive and thorough interviews with all members of its staff, preparing a report detailing the results of the investigation, sanctioning the offending supervisor for unprofessional conduct, and making strenuous efforts to relocate the employee to another position. Farley v. Am. Cast Iron Pipe Co., 115 F.3d 1548, 1555 (11th Cir. 1997).

Equal Pay Act

“Equal pay for equal work” has become a familiar refrain in the American workplace during the 1980’s and 90’s, particularly among female employees as they assert their rights to compensatory justice in the workplace. Although women increasingly have assumed vocational roles once reserved exclusively for males, vestiges of discrimination still exist in disparate pay practices by employers. The influx of women into traditionally male-dominated vocations has been much more rapid than the spread of pay equity among the sexes. In 1979, the Bureau of Labor Statistics found that women workers generally earned $0.62 for every dollar earned by men. In recent years, that figure has marginally increased, but only to the point that females now earn approximately $ 0.70 for each dollar earned by males.

Proving that an employer has violated the federal Equal Standards Act presents at least five inquiries:

  • Do the defendant and plaintiff meet the statutory definitions of employer and employee, respectively?
  • At the time of the alleged violation, was the plaintiff an employee performing work that required equal skill, effort, and responsibility?
  • Were the jobs at issue performed under similar working conditions?
  • Was the plaintiff paid a lower wage or compensation than the comparable male?
  • Was the lower rate of pay for the plaintiff based on her sex?

How is this different than Sexual Discrimination?

Disparities in pay between male and female employees constituting unequal treatment on the basis of gender may give rise to other theories of liability in addition to the remedies provided by the Equal Pay Act. For example, sex discrimination in pay may constitute sex discrimination in the “terms and conditions of employment,” under state and federal civil rights laws. However, gender discrimination statutes generally require a showing of an intent to discriminate by the employer, while the Equal Pay Act provides for strict liability regardless of intent. Indeed, the question of an employer’s intent to discriminate by engaging in illegal disparate pay practices may not even be relevant unless evidence of the employer’s intentional discrimination is offered to establish a willful violation in order to gain the protection of a three-year statute of limitations or to support a claim for liquidated damages.

The availability of Punitive damages is a substantial reason to seek compensation under Title VII instead of where there is evidence of willful discrimination. Punitive Damages provide potentially greater rewards for the plaintiff.

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