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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 (11th 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.

Frequently called a “hostile work environment claim,” harassment without tangible employment action requires that a  claimant allege and prove that (1) she belonged to a protected group, (2) she was subjected to unwelcome harassment, (3) the harassment was based on her gender, (4) the harassment was so severe that it affected a term, condition or privilege of employment and created a discriminatorily abusive working environment, and (5) the employer knew or should have known of the harassment and did not intervene.  Russell v. KSL Hotel Corp., 887 So. 2d 372, 377-78 (Fla. 3d DCA 2004).

Sexually harassing conduct that is not severe and pervasive is not actionable under Title VII or the FCRA.

The objective component of this analysis is somewhat fact intensive. Nevertheless, the Supreme Court and this Court have identified the following four factors that should be considered in determining whether harassment objectively altered an employee’s terms or conditions of employment: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance.

Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) (“We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations”); Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (“A recurring point in these opinions is that ‘simple teasing,’ offhand comments, and isolated incidents [unless extremely serious] will not amount to discriminatory changes in the ‘terms and conditions of employment’”).

Federal and Florida courts focus on whether the employee welcomed the alleged conduct.  A willing participant in sexual conduct cannot later claim that such conduct was sexual harassment.  If the employee consents or requests the action, the employer is not liable.  Speaks v. City of Lakeland, 315 F. Supp. 2d 1217 (M.D. Fla. 2004).

[T]he fact that sex-related conduct was “voluntary,” in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were “unwelcome.” While the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the “voluntariness” of respondent’s participation in the claimed sexual episodes. The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).

An employee must generally timely avail herself of a company’s sexual harassment complaint procedures for a future sexual harassment lawsuit to be viable.  Faragher v. City of Boca Raton, 524 U.S. 775 (1998).  “[T]he victim of the alleged harassment has an obligation to use reasonable care to avoid harm where possible.”  Walton v. Johnson & Johnson Services, Inc., 347 F.3d 1272 (11th Cir. 2003) (finding that an employee that repeatedly allowed herself to be put into vulnerable positions after knowing that sexual conduct would likely result); see Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (“If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if damages could reasonably have been mitigated no award against a liable employer should reward a plaintiff for what her own efforts could have avoided”).

Sexual relationships between employees, even between an employee and her supervisor, do not qualify as sexual harassment when the employee has welcomed the sexual conduct. For example, an employer can prove that certain conduct that the employee engaged in was welcome by providing evidence of sexually provocative speech or dress.  Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) (“[S]uch evidence is obviously relevant. The Equal Employment Opportunity Commission (EEOC) Guidelines emphasize that the trier of fact must determine the existence of sexual harassment in light of “the record as a whole” and “the totality of circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred”).

Peter Mavrick is an experienced Fort Lauderdale employment attorney who defends businesses.  This article does not serve as a substitute for legal advice tailored to a particular situation.

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