Articles Posted in Employment Law

Published on: September 17, 2022

MIAMI BUSINESS LITIGATION: ENFORCING FLORIDA’S TRADE SECRET ACT TO PREVENT EMPLOYEES FROM MISAPPROPRIATING EMPLOYER’S TRADE SECRETS

Trade secret misappropriation claims are commonly filed in business litigation by employers against former employees. An employee is precluded from using for his or her own advantage, and to the detriment of a former employer, any trade secrets obtained in the course of prior employment. East v. Aqua Gaming, Inc., 805 So. 2d 932 (Fla. 2d DCA 2001). Where an employee acquires, during the course of his or her employment, a special technique or process developed by his or her employer, the employer is under a duty, even in the absence of an express contractual provision, not to disclose such skills, techniques, or processes for the employee’s own benefit or another’s benefit to the detriment of the former employer. Premier Lab Supply, Inc. v. Chemplex Industries, Inc., 10 So. 3d 202 (Fla. 4th DCA 2009). Peter Mavrick is a Miami business litigation attorney, and represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

In cases where there is no restrictive covenant between an employer and its employees, employers can sometimes prohibit former employees from disclosing confidential information under the Florida Uniform Trade Secrets Act (“FUTSA”). The lack of a confidentiality agreement does not necessarily defeat an employer’s argument that particular information is trade secret. Premier Lab Supply, Inc. v. Chemplex Industries, Inc., 10 So. 3d 202 (Fla. 4th DCA 2009). FUTSA mirrors the federal Uniform Trade Secrets Act, which also prohibits misappropriation of trade secrets and provides certain remedies. To obtain relief under FUTSA, the employer must prove: “(1) that it possessed a trade secret and took reasonable steps to protect its secrecy; and (2) the trade secret was misappropriated, either by one who knew or had reason to know the trade secret was improperly obtained or who used improper means to obtain it.” Mapei Corp. v. J.M. Field Marketing, Inc., 295 So. 3d 1193 (Fla. 4th DCA 2020).

Under FUTSA, “trade secret” is defined as “information, including a formula, pattern, compilation, program, device, method, technique, or process that: (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” § 688.002, Fla. Stat. To be a trade secret under FUTSA, the information sought to be protected must be secret, and information that is generally known, or is necessarily disclosed upon use by a third party, cannot qualify as a trade secret. In re Maxxim Med. Group, Inc., 434 B.R. 660 (Bankr. M.D. Fla. 2010).

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Published on: September 10, 2022

FORT LAUDERDALE NON-COMPETE AGREEMENTS: SEEKING INJUNCTIVE RELIEF TO ENFORCE RESTRICTIVE COVENANTS

By Mavrick Law Firm

A prevalent issue in business litigation is whether an injunction is needed to enforce a restrictive covenant and protect a party’s legitimate business interest. In Florida, Section 542.335, Florida Statutes, governs the enforcement of restrictive covenants. Under section 542.335, “[a] trial court may grant a temporary injunction if the complainant proves ‘(1) the likelihood of irreparable [injury], (2) the unavailability of an adequate remedy at law, (3) a substantial likelihood of success on the merits, and (4) that a temporary injunction will serve the public interest.’” TransUnion Risk & Alternative Data Sols., Inc. v. Reilly, 181 So. 3d 548 (Fla. 4th DCA 2015). Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

A showing of irreparable injury is required for a temporary injunction to issue. Surgery Ctr. Holdings, Inc. v. Guirguis, 318 So. 3d 1274 (Fla. 2d DCA 2021). With respect to the likelihood of irreparable injury, Section 542.335(1)(j) provides that “[t]he violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.” Thus, “a party seeking to enforce a restrictive covenant by injunction need not directly prove that the defendant’s specific activities will cause irreparable injury if not enjoined.” Am. II Elecs., Inc. v. Smith, 830 So. 2d 906 (Fla. 2d DCA 2002). A party only needs to prove a violation of an enforceable restrictive covenant to be entitled to the presumption. Surgery Ctr. Holdings, Inc. v. Guirguis, 318 So. 3d 1274 (Fla. 2d DCA 2021).

An enforceable restrictive covenant is one in which “the contractually specified restraint is reasonably necessary to protect [a] legitimate business interest.” Section 542.335(1)(c). “Therefore, to benefit from the presumption of irreparable injury, the party seeking to enforce a covenant not to compete must show that the covenant protects a legitimate business interest as defined by section 542.335(1)(b) and that the covenant was violated.” Walsh v. Paw Trucking, Inc., 942 So. 2d 446 (Fla. 2d DCA 2006). Fla. Stat.

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Published on: August 27, 2022

FORT LAUDERDALE BUSINESS LITIGATION: PROTECTING CUSTOMER LISTS AS TRADE SECRETS

By Mavrick Law Firm

A prevalent issue arising in business litigation throughout Florida is whether the customer list of a business or employer is a protected trade secret under Fl as a trade secret Florida’s Uniform Trade Secret Act (FUTSA). Trade secrets are broadly defined under FUTSA and include information that “derive[s] economic value from not being readily ascertainable by others and must be the subject of reasonable efforts to protect its secrecy.” Del Monte Fresh Produce Co. v. Dole Foods Co., Inc., 136 F. Supp. 2d 1271 (S.D. Fla. 2001). Florida law considers a business’s customer lists and the information contained therein to be trade secrets subject to protection. Variable Annuity Life Ins. Co. v. Dull, No. 09-80113, 2009 WL 3180498 (S.D. Fla. Sept. 25, 2009). Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

FUTSA provides that “a complainant is entitled to recover damages for misappropriation.” Fla. Stat. § 688.004(1). In turn, “misappropriation” is defined as either the “(a) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means, or (b) Disclosure or use of a trade secret of another . . .” Fla. Stat. § 688.002(2) (emphasis added). Thus, a plain reading of the statute makes clear that the wrongful acquisition of a trade secret, even without its actual use, constitutes a violation of FUTSA. See H2Ocean v. Schmitt, 2006 WL 1835974 (N.D. Fla. June 30, 2006). A trade secret is misappropriated if it is either acquired via improper means, or if it is disclosed or used by someone without proper consent.

FUTSA permits injunctive relief to redress any actual or threatened misappropriation of trade secrets. Se. Mech. Servs., Inc. v. Brody, 2008 WL 4613046 (M.D. Fla. Oct. 15, 2008). Florida law protects customer lists from misappropriation through injunctive relief. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Silcox, No. 01- 8800, 2001 WL 1200656 (S.D. Fla. Oct. 4, 2001). To prove a violation of FUTSA, a plaintiff must show that it: (1) possessed secret information and took reasonable steps to protect its secrecy and (2) the secret it possessed was misappropriated, either by one who knew or had reason to know that the secret was improperly obtained or by one who used improper means to obtain it. Del Monte Fresh Produce Co. v. Dole Foods Co., Inc., 136 F. Supp. 2d 1271 (S.D. Fla. 2001). Florida courts have held that “documents containing strategic marketing plans and pricing information have been held to constitute trade secrets under Florida law.” VAES Aero Servs. v. Arroyo, 860 F. Supp. 2d 1349, 1359 (S.D. Fla. 2012).

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Published on: August 20, 2022

MIAMI BUSINESS LITIGATION: TRADE SECRET MISAPPROPRIATION DURING EMPLOYMENT

By Mavrick Law Firm

In business litigation, claims for trade secret misappropriation often arise under Florida’s Uniform Trade Secret Act (“FUTSA”) or the Defend Trade Secrets Act (“DTSA”). For liability to attach under the DTSA and FUTSA, the information must be the fruit of wrongful acquisition, or misappropriation. The DTSA defines “misappropriation” to include “acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means” or “disclosure or use of a trade secret of another without express or implied consent” in specified circumstances. 18 U.S.C. § 1839(5). “Improper means” under the DTSA includes “theft, bribery, misrepresentation, [and] breach or inducement of a breach of a duty to maintain secrecy,” but excludes “reverse engineering, independent derivation, or any other lawful means of acquisition.” Peter Mavrick is a Miami business litigation attorney, and represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Florida courts routinely find that trade secrets are acquired through improper means when a business’ employee copies or extracts electronic information before their employment ends. For example, in Pharmerica, Inc. v. Arledge, the United States District Court for the Middle District of Florida held that the defendant “misappropriated those trade secrets by duplicating and copying them and/or sending them to his home computer or personal email account and deleting them from the [plaintiff’s] computers.” 2007 WL 865510 (M.D. Fla. Mar. 21, 2007). Pharmerica considered the fact that the defendant “copied almost all of his electronic files from his work computer” just two days before he resigned from his position with his former employer. The trade secrets and proprietary information involved the former employer’s distribution and operational plans, quality control programs, and—most importantly—the former employer’s pricing details for major corporate clients that represented at one-third of the company’s total revenues.

Under the DTSA, federal courts across the United States have held that misappropriation by acquisition via download or password protected database requires evidence that an employee took affirmative action to ensure they retained access to the information after he or she was terminated, such as copying the information to his or her hard drive. For example, in Samick Music Corp. v. Gordon, the Court held it was reasonable to suspect that defendants obtained the customer’s information from the former employer’s database through improper means because: (a) many of the purchases were made by individuals who had previously purchased products from the former employer, and (b) the plaintiff identified two instances after the employee’s termination where defendants contacted former customers to sell them purported former employer’s replacement parts. The district court found that Plaintiff had demonstrated a likelihood of success on its DTSA and CUTSA trade secret misappropriation claims. 2020 WL 3210613 (C.D. Cal. Mar. 26, 2020).

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Published on: August 3, 2022

FORT LAUDERDALE NON-COMPETE AGREEMENTS: ENFORCING RESTRICTIVE COVENANTS UNDER FLORIDA LAW

By Mavrick Law Firm

Business litigation often involves contractual disputes between employers and employees concerning the enforceability of non-compete agreements or other restrictive covenants. Under Florida law, a contractual non-compete restriction cannot be used solely as a tool to eliminate competition or merely to prevent an employee from working with a competing employer in any capacity. When a breach-of-contract action is based upon enforcement of a restrictive covenant, the plaintiff must plead and prove specific elements to establish that the restrictive covenant is a valid restraint of trade. Rauch, Weaver, Norfleet, Kurtz & Co., Inc. v. AJP Pine Island Warehouses, Inc., 313 So. 3d 625 (Fla. 4th DCA 2021). “[T]he term ‘restrictive covenants’ includes all contractual restrictions upon competition, such as noncompetition/nonsolicitation agreements, confidentiality agreements, exclusive dealing agreements, and all other contractual restraints of trade.” Henao v. Prof’l Shoe Repair, Inc., 929 So. 2d 723 (Fla. 5th DCA 2006). Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

“Section 542.335 contains a comprehensive framework for analyzing, evaluating and enforcing restrictive covenants in Florida based on an ‘unfair competition’ analysis.” Henao v. Prof’l Shoe Repair, Inc., 929 So. 2d 723 (Fla. 5th DCA 2006). Under Section 542.335, a plaintiff must satify three requirements to enforce a restrictive covenant: (1) the restrictive covenant must be “set forth in writing signed by the person against whom enforcement is sought”; (2) the party seeking to enforce the restrictive covenant “shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant”; and (3) the party seeking to enforce the restrictive covenant “shall plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction.” § 542.335, Fla. Stat.

Restrictive covenants are unlawful, void, and unenforceable if they are not supported by a legitimate business. “[T]he determination of whether an activity qualifies as a protected legitimate business interest under [Section 542.335] is inherently a factual injury, which is heavily industry – and context-specific.” White v. Mederi Caretenders Visiting Servs. of Se. Fla., LLC, 226 So. 3d 774 (Fla. 2017). “Section 542.335 provides a list of ‘legitimate business interests,’ but it specifically states that the list is not exclusive.” Infinity Home Care, L.L.C. v. Amedisys Holding, LLC, 180 So. 3d 1060, 1063 (Fla. 4th DCA 2015). Section 542.335 protects the following legitimate business interests: trade secrets; valuable confidential business or professional information that otherwise does not qualify as trade secrets; substantial relationships with specific or existing customers, patients, or clients; customer, patient, or client goodwill associated with an ongoing business or professional practice, a specific geographic location, or a specific marketing or trade area; and extraordinary or specialized training.

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Published on: July 20, 2022

DEFENDING FLORIDA EMPLOYERS: EMPLOYEE’S BURDEN TO DEMONSTRATE PRETEXT IN CLAIMS OF DISCRIMINATION

By Mavrick Law Firm

A prima facie case of discrimination raises the presumption or inference that the employer unlawfully discriminated against the employee. This is because the Court presumes the employer’s “acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). In such a case, the employer must articulate some legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas, Corp. v. Green, 411 U.S. 792 (1973). When the employer can do so, it will defeat the employee’s claim of discrimination so long as the employee cannot establish that the employer’s proffered reason is merely pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The employee bears the ultimate burden of demonstrating that the employer intentionally discriminated against him or her. City of Miami v. Hervis, 65 So. 3d 1110 (Fla. 3d DCA 2011). As such, where the employer meets its burden of presenting legitimate, nondiscriminatory reasons for the adverse employment action, the employee “must prove that the reasons articled were false and that discrimination was the real reason for the [employer’s] actions.” City of Miami v. Hervis, 65 So. 3d 1110 (Fla. 3d DCA 2011). Provided that the legitimate, nondiscriminatory reason proffered by the employer “is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it. Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000). The Court is “not in the business of adjudging whether employment decisions are prudent or fair. Instead, [its] sole concern is whether unlawful discriminatory animus motivates a challenged employment decision.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999).

In demonstrating pretext, the employee must create more than “a weak issue of fact” and, instead, has the “ultimate burden” of presenting “significantly probative evidence that the proffered reason is a pretext for discrimination.” Carter v. City of Miami, 870 F.2d 578 (11th Cir. 1989). In other words, the employee must present “significantly probative evidence” establishing that each and every reason proffered by the employer is “a lie” and that the adverse employment decision was actually motivated by discrimination. St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). The employee “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable factfinder could find them unworthy of credence.” Goodman v. Georgia Southwestern, 147 Fed. Appx. 888 (11th Cir. 2005). The employee must make this showing by a preponderance of the evidence. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981).

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Published on: July 13, 2022

FORT LAUDERDALE BUSINESS LITIGATION: TRADE SECRET THEFT BY AN EMPLOYEE

By Mavrick Law Firm

Business litigation in Florida often involves claims for trade secret misappropriation under Florida’s Uniform Trade Secret Act (FUTSA) or the Defend Trade Secrets Act (DTSA). For liability to attach under DTSA or FUTSA, the trade secret information must be the fruit of a wrongful acquisition or misappropriation. Misappropriation of a trade secret occurs “where a person who knows or has reason to know that the trade secret was acquired by improper means acquires the trade secret of another or where a person who has obtained the trade secret by improper means discloses or uses the trade secret of another without express or implied consent.” ACR Elecs., Inc. v. DME Corp., 2012 WL 13005955 (S.D. Fla. Oct. 31, 2012). In business litigation involving an employment relationship, misappropriation may occur during the employment or after an employees’ employment terminates. Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

The DTSA defines “misappropriation” to include “acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means” or “disclosure or use of a trade secret of another without express or implied consent” in specified circumstances. 18 U.S.C. § 1839(5). “Improper means” under DTSA includes “theft, bribery, misrepresentation, [and] breach or inducement of a breach of a duty to maintain secrecy,” but excludes “reverse engineering, independent derivation, or any other lawful means of acquisition.” 18 U.S.C. § 1839(6). Meanwhile, the definition of “improper means” under FUTSA also includes “breach or inducement of a breach of a duty to maintain secrecy.” Fla. Stat. § 688.002(1). While the general definitions of a trade secret are identical under FUTSA and DTSA, a court’s analysis under each statute is substantially equivalent. Compulife Software Inc. v. Newman, 959 F.3d 1288 (11th Cir. 2020). Actions may be “improper” for trade-secret purposes even if not independently unlawful. Compulife Software Inc. v. Newman, 959 F.3d 1288 (11th Cir. 2020).

Florida courts routinely find that trade secrets may be acquired through improper means after an employment relationship ends. Federal courts within the Eleventh Circuit Court of Appeals must review the facts surrounding the alleged misappropriation on a case-by-case basis. For example, in Int’l Hair & Beauty Sys., LLC v. Simply Organic, Inc., the United States District Court in and for the Middle District of Florida granted plaintiff’s motion for preliminary injunction against the business’ former technical director for misappropriation of company trade secrets and to enforce non-compete and non-solicitation agreements. 2011 WL 5360098 (M.D. Fla. Sep. 26, 2011). During his employment, the Simply Organic defendant “had access to contact management lists including clients, customers and potential customers” of plaintiff’s hair salon. Months after his employment ended, the former employee then obtained, from another former employee of plaintiff, “a list of hair salons and beauty supply stores” that contained several “salons that were utilizing products of Plaintiff.”

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Published on: July 9, 2022

DEFENDING FLORIDA EMPLOYERS: DEFEATING TITLE VII RETALIATION CLAIMS

By Mavrick Law Firm

Title VII’s anti-retaliation provision makes it “an unlawful employment practice for an employer to discriminate against any of [its] employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000. This provision serves to “prevent[] an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). The first part of this provision is called the “opposition clause,” which prohibits retaliation against an employee who “opposed any practice made an unlawful employment practice by” Title VII. Patterson v. Georgia Pacific, LLC, et al., 2022 WL 2445693 (11th Cir. July 5, 2022). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The United States Supreme Court has concluded that “[w]hen an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.” Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 555 U.S. 271 (2009). Some federal courts generally recognize “oppositional conduct” as conduct that “encompasses utilizing informal grievance procedures as well as staging informal protests and voicing one’s opinion in order to bring attention to an employer’s discriminatory activities.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253 (4th Cir. 1998).

Other federal courts apply the “manager exception” when determining oppositional conduct and evaluating retaliation claims under the Fair Labor Standards Act (“FLSA”). This exception requires an employee to “step outside his or her role of representing the company” to engage in protected activity. McKenzie v. Renberg’s Inc., 94 F.3d 1478 (10th Cir. 1996). Courts apply this exception because “nearly every activity in the normal course of a manager’s job would potentially be protected activity,” and “[a]n otherwise typical at-will employment relationship could quickly degrade into a litigation minefield.” Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617 (5th Cir. 2008). Several district courts have imported the manager exception into Title VII’s anti-retaliation provision. DeMasters v. Carilion Clinic, 796 F.3d 409 (4th Cir. 2015).

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Published on: June 22, 2022

DEFENDING FLORIDA EMPLOYERS: AVOIDING VICARIOUS LIABILITY UNDER THE FARAGHER/ELLERTH AFFIRMATIVE DEFENSE

By Mavrick Law Firm

The American with Disabilities Act (ADA) prohibits discrimination in the “terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The United States Supreme Court has also found cognizable similar claims for hostile work environment under Title VII. Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). In cases where a current or former employee asserts such claims under the ADA or Title VII, an employer can avoid vicarious liability for a supervisor’s harassment by demonstrating the steps taken by the employer to prevent the harassment. This defense is commonly referred to as the Faragher/Ellerth affirmative defense, based on the Supreme Court cases Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

To be entitled to the Faragher/Ellerth affirmative defense, the employer must establish (1) that it “exercised reasonable care to prevent and correct promptly” any harassing behavior; and (2) that the plaintiff employee “unreasonably failed to take advantage of any preventive or corrective opportunities by the employer or to avoid harm otherwise.” Madray v. Publix Supermarkets, Inc., 298 F.3d 1290 (11th Cir. 2000). The employer bears the burden Because of establishing both of these elements. Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305 (11th Cir. 2001).

Ordinarily, the Faragher/Ellerth affirmative defense is not available if the supervisor’s harassment culminates in “tangible employment action,” such as discharge or demotion. Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272 (11th Cir. 2003). However, an employer still may be able to assert and prove the Faragher/Ellerth affirmative defense where it is undisputed that the tangible employment action was for a legitimate reason and not based on a protected characteristic. In Walton v. Johnson & Johnson Servs., Inc., the Eleventh Circuit Court of Appeals concluded that a sexual harassment plaintiff’s discharge did not preclude the Faragher/Ellerth defense where it was undisputed that she was terminated “because she failed to return to work and that her gender played no motivating role in [her employer’s] decision.” 347 F.3d 1272 (11th Cir. 2003).

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Published on: June 8, 2022

DEFENDING FLORIDA EMPLOYERS: DEFEATING TITLE VII CLAIMS WHERE HARASSMENT IS NOT SUFFICIENTLY SEVERE

By Mavrick Law Firm

Title VII of the Civil Rights Act of 1964 prohibits employers 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). Sexual harassment can constitute discrimination based on sex for purposes of Title VII. Mendoza v. Borden, Inc., 193 F.3d 1238 (11th Cir. 1999). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

Sexual harassment generally comes in the following two forms: harassment that does not result in a tangible employment action (typically referred to as “hostile work environment” harassment), and harassment that does result in a tangible employment action (typically referred to as “quid pro quo” harassment). Johnson v. Booker T. Washington Broadcasting Serv., Inc., 234 F.3d 501 (11th Cir. 2000). A plaintiff establishes a hostile work environment under Title VII upon proof that “discriminatory intimidation, ridicule, and insult [permeate the workplace in a manner] that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Jones v. UPS Ground Freight, 683 F.3d 1283 (11th Cir. 2012).

To estimate a prima facie case of hostile work environment, the employer must show that: (1) she “belongs to a protected group;” (2) she “has been subject to unwelcome sexual harassment;” (3) the harassment was “based on [her] sex;” (4) “the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment;” and (5) there is “a basis for holding the employer liable.” Mendoza v. Borden, Inc., 193 F.3d 1238 (11th Cir. 1999).

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