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Employees (current and former) can sue their employers for race and gender discrimination and hostile work environments under the Florida Civil Rights Act (the “FCRA”). The FCRA was patterned after Title VII of the Civil Rights Act of 1964, which prohibits employers with more than 15 employees from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Therefore, federal and state courts in Florida analyze FCRA claims under the same framework as Title VII claims. Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1271 (11th Cir. 2010).  Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims.  Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

An employee suing under FCRA or Title VII can establish their race and gender discrimination claim with either direct or circumstantial evidence. See, e.g., Mathis v. Wachovia Bank, 255 F. App’x 425, 429 (11th Cir. 2007). To establish a prima facie case of discrimination under FRCA or Title VII, employees must show that: (1) they were a member of a protected class defined by race or gender; (2) they were qualified for the job; (3) they suffered an objectively serious adverse job action; and (4) they were treated less favorably than a similarly-situated individual. See Maynard v. Board of Regents of Div. of Univs. of Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003). An adverse action is objectively serious if it is “tangible enough to alter [the employee’s] compensation, terms, conditions, or privileges of employment.” See Stavropoulos v. Firestone, 361 F.3d 610, 617 (11th Cir. 2004). “The Supreme Court has stressed that Title VII provides no protection against ‘those petty slights or minor annoyances that often take place at work and that all employees experience.’” Harrison v. Belk, Inc., 748 F. App’x 936, 943 (11th Cir. 2018). Florida law provides that individuals who were allegedly treated better—known in legal speak as “comparators”—must be “similarly situated in all material respects.” Lewis v. City of Union City, 918 F.3d 1213, 1218 (11th Cir. 2019) (en banc) (emphasis added). In other words, the “comparator” must have “engaged in the same basic conduct (or misconduct) as the plaintiff” and that they “‘cannot reasonably be distinguished.’” Id. at 1227-28.

Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to rebut the presumption of discrimination by giving a legitimate and non-discriminatory reason for the challenged adverse action. The burden then shifts back to the plaintiff after defendant establishes a non-discriminatory reason. The plaintiff then must prove with “significantly probative evidence” that the asserted reason for the adverse job action was merely a pretext for discrimination. Brooks v. County Commission of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir. 2006). To sufficiently demonstrate “pretext,” a plaintiff may not simply “quarrel with the wisdom of the employer’s reason; instead, as long as the reason ‘is one that might motivate a reasonable employer” to do what it did, the plaintiff “must meet that reason head on and rebut it.’” See Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000). A reason cannot be found a pretext for discrimination “unless it is shown both that the reason was false, and that discrimination was the real reason.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993).

Federal courts do not allow plaintiffs to litigate whether they are good employees who deserved better treatment. See Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002). The issue is not the wisdom or accuracy of the employment decision.  Courts instead are only concerned with whether the employer acted for non-discriminatory reasons.  The inquiry into pretext centers on the employer’s beliefs, i.e., what is in the decision-maker’s head.  The court’s sole concern is whether unlawful discrimination motivated the employment decision.

 To establish a hostile work environment under the FCRA and Title VII, the employee must show that: (1) they belong to a protected group; (2) they were subjected to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) the harassment was based on her sex; (4) it was sufficiently severe or pervasive to alter the terms and conditions of her employment and create an abusive working environment; and (5) there exists a basis for holding the employer liable. Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999). Sexual harassment constitutes sex discrimination under Title VII only when the harassment materially alters the terms or conditions of employment. Id. at 1245. In the absence of explicit quid pro quo harassment, a plaintiff alleging hostile environment must “connect allegations of sexual harassment to a violation of Title VII.” Id. at 1245. An employer’s harassing actions toward an employee do not constitute employment discrimination for Title VII unless the conduct is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

The employee must “subjectively perceive” the harassment to have been severe or pervasive, and, such perception must be “objectively reasonable.”  The objective severity of the alleged harassment must be viewed from the perspective of a reasonable person in the plaintiff’s position, considering all relevant circumstances.  Courts examine the challenged conduct in context (not as isolated acts) to decide whether it was severe or pervasive enough to have altered the terms and conditions of plaintiff’s employment and create a hostile work environment.  As the United States Court of Appeals for the Eleventh Circuit explained in Mendoza v. Borden, Inc., supra, “‘simple teasing’, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’”

Peter Mavrick is a Fort Lauderdale employment lawyer.  This article does not serve as a substitute for legal advice tailored to a particular situation.

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