Articles Posted in Labor – Employment Law

An employee bringing a hostile work environment claim must show that the complained of conduct is sufficiently severe to claim unlawful discrimination under Title VII of the Civil Rights Act and the Florida Civil Rights Act.  Generally, courts consider factors that include whether the incidents are frequent, severe, physically threatening or humiliating, and interfere with work.  Peter Mavrick is a Fort Lauderdale employment attorney who has extensive experience with defending businesses and business owners against claims of sexual harassment.

It is unlawful under Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992 for covered employers (i.e., employers who have at least 15 employees) to discriminate in the workplace on the basis of sex, race, color, national origin, and religion.  The United States Supreme Court’s precedent in Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986), first recognized that hostile work environment claims qualify as discrimination under Title VII in the seminal case.  The Supreme Court explained that, “[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’”  Jurisprudence has since clarified what sorts of conduct is considered to be severe enough to qualify as a hostile work environment.  While Title VII does not contain any requirement that discrimination be sufficiently severe to be actionable, the courts have interpreted this as an implicit requirement.  The Supreme Court explained in the case of Faragher v. City of Boca Raton, 524 U.S. 775 (1998), that “simple teasing, offhand comments, and isolated incidents” do not qualify as a hostile work environment actionable under Title VII.

The United States Eleventh Circuit Court of Appeals, which is the federal appellate court governing federal cases arising in the State of Florida, discussed the degree of harassment which is necessary to sustain a claim of a hostile work environment its recent decision in Ortiz v. Sch. Bd. of Broward County, Florida, 780 Fed. Appx. 780 (11th Cir. 2019).  The employee in Ortiz claimed that his supervisor harassed him concerning his race and national origin. The employee’s supervisor purportedly used racial slurs such as “spic” and “wetback” and openly made disparaging remarks concerning the work ethic of Puerto Ricans and racial minorities.  The trial court entered summary judgment against the employee, finding that the supervisor’s comments about the employee’s ethnicity or national origin “were not frequent, sever, or threatening and did not affect [employee’s] job performance.”   The employee appealed.

To qualify as sexual harassment under Florida and Federal antidiscrimination laws, sexual conduct between employees must be so severe and pervasive that it alters the “terms and conditions” of employment.  While it may be prudent for an employer to discourage sexual relationships between supervisors and employees, the mere fact that an employee has been the subject of sexual conduct involving her supervisor does not necessarily mean that the employer will be found to have violated Title VII of the Civil Rights Act of 1964 (“Title VII”) or the Florida Civil Rights Act of 1992 (“FCRA”).  Peter Mavrick is Fort Lauderdale employment lawyer who has extensive experience in defending businesses and business owners accused of a sexual harassment.

The law barring sexual harassment in the workplace was derived from cases interpreting Title VII, which prohibits discrimination on the basis of sex.  In Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986), the United States Supreme Court decided that “unwelcome sexual advances that create an offensive or hostile working environment violate Title VII.”

“In order to prevail on a claim of sexual harassment when no adverse ‘tangible employment action’ is taken, a plaintiff must present sufficient evidence to show that the harassment she suffered, objectively and subjectively, was severe or pervasive.”  Frederick v. Sprint/United Management Co., 246 F. 3d 1305 (11^th Cir. 2001).  In Frederick, the plaintiff failed to present sufficient evidence to establish any causal link between the adverse “tangible employment action”, i.e., that she was denied a promotion, and the alleged harassment.

Certain types of employee complaints to an employer qualify as “protected activity.”  An employer that responds to a protected complaint by terminating, demoting, or otherwise taking an adverse employment action against the employee risks being sued for retaliation under Title VII of the Civil Rights Act of 1964 or the Florida Civil Rights Act of 1992.  For a complaint to qualify as protected activity, the employee must have a good faith and objectively reasonable belief that the complained of conduct was in fact unlawful discrimination.  Peter Mavrick is Fort Lauderdale employment lawyer who has extensive experience in defending businesses and business owners against claims of discrimination.

To establish a prima facie case of retaliation under Title VII of the Civil Rights Act of 1964, an allegedly aggrieved employee must demonstrate: (1) that he or she engaged in statutorily protected activity; (2) that he or she suffered adverse employment action; and (3) that the adverse employment action was causally related to the protected activity. Coutu v. Martin County Bd. of County Comm’rs, 47 F.3d 1068 (11th Cir.1995)

The conduct complained of need not actually constitute unlawful discrimination to qualify as “protected activity.”  An employee’s erroneous complaint concerning lawful conduct can still constitute protected activity when that employee has “a good faith, reasonable belief that the employer was engaged in unlawful employment practices.” Little v. United Technologies, Carrier Transicold Division, 103 F.3d 956 (11th Cir.1997).  However, it is insufficient for a plaintiff “to allege his belief in this regard was honest and bona fide; the allegations and record must also indicate that the belief, though perhaps mistaken, was objectively reasonable.” Id. The reasonableness of a plaintiff’s belief that his or her employer “engaged in an unlawful employment practice must be measured against existing substantive law.” Howard v. Walgreen Co., 605 F.3d 1239 (11th Cir.2010).

An aggrieved employee suing his or her employer for “sexual harassment” must present evidence that his workplace is such a hostile and abusive work environment because of his or her sex that it alters the conditions of his employment. An aggrieved employee does not make an actionable claim if he or she has suffered only isolated instances of sexual harassment.  Peter Mavrick, of the Mavrick Law Firm, is an employment lawyer who regularly defends businesses and management against employment discrimination accusations, claims, and lawsuits.

Title VII of the Civil Rights Act and the Florida Civil Rights Act (FCRA) bar discrimination against employees on the basis of sex.  An employer likely has likely committed unlawful discrimination if it bases the decision to hire, fire, promote, or discipline an employee based upon the employee’s sex.  However, an employee may also sue for sex discrimination if he or she is subject to a hostile work environment because of gender, which is a claim commonly called “sexual harassment.”

To prove a hostile work environment claim, an employee must show: (1) that he or she belongs to a protected group; (2) that he or she has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the harassment was based on his or her sex; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) a basis for holding the employer liable.

Employers in Florida are free to use all lawful criteria in deciding which employees to promote within the business.  It is well known that Florida and federal law prohibit employment discrimination based on various characteristics, such as race, age, national origin, sex, or religious affiliation.  When considering employment discrimination lawsuits, Florida and federal courts have scrutinized  evidence employees have proffered in support of their claims of discrimination.  When the evidence does not logically prove discrimination, courts have dismissed the claims.  Peter Mavrick is an experienced employment lawyer who defends businesses and their owners against claims of employment discrimination and retaliation, including accusations of discrimination filed with the United States Equal Employment Opportunity Commission (EEOC) and the Florida Commission on Human Relations (FCHR).

In Wesley v. Austal USA, LLC, 18-13775 (11th Cir. June 28, 2019), the Eleventh Circuit Court of Appeals recently affirmed summary judgment in favor of an employer in a lawsuit claiming that the employee did not get a job promotion because of race discrimination.  The employee contended that circumstantial evidence showed there was a discriminatory motivation behind the employer’s decision not to promote her.

An employee using circumstantial evidence to show that she was discriminated against must comply with the judicial doctrine called the “McDonnel Douglas burden-shifting framework.”   McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008).  The employee is required to demonstrate that he or she (1) is a member of a protected class; (2) was subjected to an adverse employment action (such as a decision not to promote); (3) qualified to do the job, and (4) was treated less favorably than “similarly situated employees.”  If the employee establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its action.  After the employer proffers the non-discriminatory reason, then the employee must show why this reason is not true or is otherwise a “pretext,” i.e., a reason given that is not the “real” reason.

A recent decision from the federal appellate court that decides the legal standards for employment discrimination claims in Florida federal courts made it much easier for employers to defend against employment discrimination lawsuits.  Under federal law, a plaintiff’s burden in an intentional-discrimination claim includes the burden to present evidence of other individuals who are “similarly situated”, i.e. “comparators”. The Eleventh Circuit Court of Appeals has historically interpreted the term “similarly situated” in divergent ways, causing uncertainty as to the application of that standard. In its recent decision in Lewis v. City of Union City, Georgia, 918 F.3d 1213 (11th Cir. 2019), the Eleventh Circuit clarified the standard for comparator evidence in intentional-discrimination cases as “similarly situated in all material respects.” Peter Mavrick is a Florida employment lawyer who defends businesses and management against employment discrimination lawsuits as well as claims alleging discrimination that are filed with the Equal Employment Opportunity Commission (EEOC) and the Florida Commission on Human Relations.

In Lewis v. City of Union City, Georgia, Jacqueline Lewis (“Lewis”), an African-American female police detective, returned to work after a heart attack in 2009.  Lewis was cleared to work without restrictions. In 2010, the Police Chief announced a new policy requiring all officers to carry Tasers. The new policy required training in which officers had to receive a five-second Taser shock. Lewis feared being injured because of her earlier heart attack. Lewis’s doctor described her condition as “several chronic conditions including a heart condition,” and recommended that Lewis should have a Taser or pepper spray be used either “on or near” her. Lewis informed the Police Chief of her doctor’s recommendation.

Under the new policy, Lewis would inevitably be “near” pepper spray and tasers.  The Police Chief concluded that the restrictions described by Lewis’s doctor prevented her from performing the essential duties of her job. Lewis was placed on unpaid administrative leave until her doctor released her to return to full and active duty. Lewis was instructed to complete the necessary FMLA paperwork concerning her absence and told that she could use her accrued paid leave until it was expended. Lewis exhausted all of her accrued leave but did not complete the FMLA paperwork. As a result, her absence was deemed unapproved and she was terminated pursuant to police policy on unapproved absences.