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Davie, FL 33330
You may be wondering what to do if you’ve been sexually harassed at work in Florida? Your boss or co-worker made sexual advances, and you want it to stop! You may be worried you’ll lose your job if you say something and don’t know what to do. In this article, you’ll discover what to do if sexually harassed at work in Florida.
To establish sexual harassment, a worker must show they suffered unwanted sexual touching, comments, requests for sex, or other behavior of a sexual nature. The sexual harassment must also be extreme enough or occur with such frequency to create a hostile work environment.
The work environment must be one that a reasonable person would find abusive and that the victim actually believes to be abusive. The objective severity of sexual harassment is judged from the view of a reasonable person in the Employee’s position, considering all the circumstances.
Factors that are considered in determining whether sexual harassment alters the worker’s terms or conditions of employment include:
Courts examine the conduct in context, not as isolated acts, and determine under a totality situation whether the harassing conduct is severe or pervasive enough to change the terms or conditions of an employee’s job and create a hostile or abusive working environment.
Either severity or pervasiveness of harassment is enough to have a case of sexual harassment in the workplace in violation of Florida law. In other words, you can have one (1) incident that is extreme, or you could have many instances that alone might not be severe but, taken together, do rise to the level of sexual harassment.
For example, a single incident where a supervisor exposes himself or sticks his hands down an employee’s pants and digitally penetrates her would be severe conduct, and only one (1) single occurrence is enough for sexual harassment. On the converse, a supervisor massaging an employee’s shoulders every morning happens so frequently that it would likely be harassment. In contrast, a single isolated incident of massaging the shoulders would not.
Here are some examples of sexual harassment in the workplace, Keep in mind that most of the decision in the Courts reject sexual harassment claims because the valid claims settle quickly, never seeing the inside of a courtroom.
Sexual harassment law in Florida is not a politeness code, and not all vulgar or sexual lingo or conduct will constitute workplace sexual harassment. Mere flirtation does not constitute sexual harassment. Simple joking, offhand comments, and isolated incidents, unless extremely serious, will not amount to sexual harassment. The context of offending words or conduct is essential in considering sexual harassment.
When a frustrated sales associate shouts, “Son-of-a-bitch..!.. she just lost that sale,” the term would bear no reference to gender/sex. It would not give rise to a sexual harassment claim in Florida. In contrast, when a co-worker calls a female employee a “bitch,” the word is gender-derogatory. It could be an example of harassment in the workplace.
In determining whether offending words or conduct gives rise to a cognizable sexual harassment claim, courts are to use common sense and an appropriate sensitivity to social context to distinguish between general office vulgarity and the conduct that a reasonable person in the Employee’s position would find severely hostile or abusive.
For purposes of establishing a sexual harassment claim, it’s enough to hear a supervisor daily refer to female employees as “bitches” and “whores” to understand that he sees women negatively and in a humiliating or degrading way; the harassing supervisor need not specifically reference the female Employee: “and you are a bitch, too.” In other words, evidence that a supervisor directed their insults at women, in general, may give rise to the conclusion of an intent to discriminate based on gender/sex, even when those insults are not directed at the individual female Employee.
Where a female employee was subjected to countless acts of verbal and physical harassment over a nine (9) week period. The Employee was subjected to offensive conduct every time she worked with the offender on a typical eight-hour shift, which constituted sexual harassment.
In another case, a supervisor began making sexual comments to an employee. The comments started out slow, about once a week. They grew in frequency until they occurred once or twice every shit for approximately 2 1/2 months. The remarks that rose to the level of sexual harassment were: (1) stating Employee’s ass looked good in her blue jeans; (2) stating the Employee had a headache because she must not have gotten any last night; (3) stating he knew how to get rid of the Employee’s headache because he had the magic touch; (4) stating his magic wand could fix anything; (5) asking if Employee wanted him to call her husband and tell her husband to give her some sex; (6) asking Employee if she wanted him to call her husband and give him some tips to ease her tension by giving her sex; and (7) telling Employee that she would not be such a bitch if her husband would give her sex. As time went on, the sexual comments started getting more vulgar, worse, and more unacceptable. The Employee periodically told the supervisor to stop making such comments and to leave her alone, but the comments were conditioned.
The above supervisor’s physical contact with the Employee involved one (1) kissing and two (2) rubbing incidents. The rubbing incidents occurred when the supervisor worked behind the Employee at the cash register. While reaching for the register, the supervisor would rub the front of his body against the back of the Employee’s body. Clearly, the comments and actions of this supervisor rose to the level of sexual harassment.
On the other hand, a single instance of slight physical contact, one (1) arguably inappropriate statement, and three (3) instances of a co-worker making a sniffing sound over an eleven (11) month period” were are far too infrequent to alter the conditions under which a sexual harassment victim was required to perform her job, and thus did not rise to the level of sexual harassment.
In another case, five (5) sexually oriented, offensive statements over sixteen (16) months were not enough to prove sexual harassment, even though a distasteful comment from one of the harassers occurred while he put his arm around the plaintiff, looked down her dress and said, “well, you got to get it when you can.”
In another case, a co-worker’s single slap to a female employee’s buttocks with a notebook was not objectively abusive and thus does not constitute sexual harassment for purposes of the Employee’s Title VII action against the Employer.
In another case, several incidents over two years, including the statement “your elbows are the same color as your nipples,” another comment that the plaintiff had big thoughts, toughing plaintiff’s arm, and attempts to look down the plaintiff’s dress, was insufficient to support a sexual harassment case.
In another case, a statement that the Employee had the “sleekest ass,” plus an isolated incident of “intentionally touching the employee’s breasts with some papers that he was holding in his hand,” did not rise to the level of sexual harassment.
In another case, a supervisor constantly asked about her personal life, told her how beautiful she was, asked her on dates, put his hand on her shoulder at least six (6) times, put “I love you” signs in her workspace, and tried to kiss her once at a bar and twice at work — were not sufficient for actionable sexual harassment.
You’ve decided to report sexual harassment at work. Who do you complain to, and how do you do it? First, I suggest reviewing your employee handbook and reading the complaint procedures.
While there are no magic words to making a sexual harassment complaint, and all that is required is you put your Employer on notice that you are complaining about an illegal action by your Employer, the handbook is still a good place to start. At a minimum, I would ensure your sexual harassment complaint gets into the hands of your HR person. The easiest way to submit a sexual harassment complaint is by email. Here, you’ll have a date and time stamp and confirmation of who the email was sent to. You can always send your complaint by U.S. mail, but if you do, send it by certified mail a return receipt.
When you make a sexual harassment complaint, you want to be very direct about what you’re complaining about. Make it very clear that you are reporting sexual harassment, and be as specific as possible with the details. Now is not the time to sugarcoat the details of the sexual harassment. And you certainly don’t want to downplay the seriousness of the behavior. Also, I suggest adding to your sexual harassment complaint that the harassment was not welcomed and you want it to stop! You may want to consider sending copies of any text messages, emails, or photographs you may have that prove you have been sexually harassed in the workplace. This will help substantiate your claims. Again, you’ll want your sexual harassment complaint to reach HR, but I would also send it to all decision-makers at your job.
Below is an example of an incident report for sexual harassment.
Dear [Employer],
Please allow this to serve as a complaint of sexual harassment discrimination as a means of seeking to enforce what I believe, in good faith, to be my lawful rights.
My supervisor [insert name] sexually harassed me on [insert date] by [ describe sexual harassment behavior ], and that harassment created a hostile work environment.
I did not welcome the sexually offensive act, and I find his extreme behavior to be threatening and humiliating, so much so that it has unreasonably interfered with my ability to perform my job.
I ask that you please promptly correct the sexually harassing behavior in the workplace.
Sincerely,
[Employee]
You can also submit a charge of discrimination with the EEOC as a way of reporting sexual harassment. In fact, it is required that you submit a charge of discrimination to the EEOC before you can bring a lawsuit for sexual harassment. This is called “exhausting your administrative remedies” and is a condition precedent to bringing a sexual harassment lawsuit in Florida.
Under the law, you have a limited amount of time to file a charge of discrimination for sexual harassment. You need to file a charge of discrimination within 300 calendar days from the day the sexual harassment took place. If you wait longer than 300 days, you’ll lose your ability to sue for sexual harassment that occurred before that time. Thus, if you feel you’ve been sexually harassed, you should not delay in filing a charge of discrimination with the EEOC.
Reporting sexual harassment at work and filing a charge of discrimination for sexual harassment are both considered protected activities under the law. This means that it is illegal to fire you for reporting sexual harassment in Florida.
After reporting sex sexual harassment, your Employer should conduct an adequate investigation and promptly correct any sexual harassment. Employers must use reasonable care to stop and quickly correct any sexual harassment. To comply with Title VII and to mitigate liability associated with sexual harassment claims, the Employer MUST exercise reasonable care to avoid and correct any harassing behavior.
Such reasonable care requires an employer to institute, distribute, and apply an anti-harassment policy and to take steps to prevent and correct harassment. An effective anti-harassment policy should be designed to inspire victims to come forward and report incidents of sexual harassment.
Workplace investigations play an essential role in addressing and correcting reports of sexual harassment. The obligation for an employer to investigate a matter is triggered by awareness or report of alleged sexual harassment. When this occurs, conducting an adequate investigation and taking appropriate corrective action will ensure that the Employer acts reasonably and responsibly.
To conduct an adequate workplace investigation into sexual harassment, an employer must appoint an individual knowledgeable about and educated in the principles of workplace investigations. The individual must be neutral, objective, and free of potential conflicts of interest.
To achieve impartiality during an investigation into sexual harassment, it is a commonly accepted HR practice to prohibit managers from conducting investigations involving alleged sexual harassment when the accused person(s) reports directly or indirectly to the manager or when the manager is the subject of an accusation. In addition, internal HR professionals who are potentially biased about the outcome should not conduct workplace investigations.
After an investigation is completed, the Employer should take prompt action. In most cases, this involves terminating the sexual harasser. If the person who reports the sexual harassment is retaliated against, this would be against the law, and the reporting victim would have a perfect case of retaliation.
Attorney Micah Longo is the founding member
and managing attorney of The Longo Firm. A
Pennsylvania native, Micah Longo...Read More