SEXUAL HARASSMENT

Under both Florida Law and Federal Law, an employee has the right to be free from sexual harassment in the workplace. There are three forms of sexual harassment that are prohibited: 1) Hostile Work Environment, 2) Quid Pro Quo Harassment, and 3) Retaliation.

Hostile Work Environment: To establish a claim for Hostile Work Environment Sexual Harassment, an employee must establish: (1) that he or she belongs to a protected group; (2) that the employee 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 must have been based on the sex of the employee; (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. A Plaintiff must establish not only that she subjectively perceived the environment as hostile and abusive, but also that a reasonable person would perceive the environment to be hostile and abusive. Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir.1999).

Quid Pro Quo Harassment: An employer may not require sexual consideration from an employee as a quid pro quo for job benefits. Put more simply, quid pro quo harassment occurs when an employer conditions a term of employment, such as a raise, upon the employee’s acquiescence to a sexual act.

Retaliation: To maintain a claim for retaliation, an employee must show four elements; 1) That she engaged in a statutorily protected activity; 2) That she suffered an adverse employment action; 3) That there exists a causal connection between the retaliatory act and the adverse employment action; 4) That the Defendants were aware of the protected activity at the time it took the adverse action.

It is critical to note that the above rules concerning sexual harassment apply to all employers who have 15 or more employees for 20 consecutive calendar weeks in the year of the harassment or the previous year. Without 15 employees, an employee's rights against his or her employer for sexual harassment are severely limited.

Procedure

The first step an employee must take is to file his or her claim with the Florida Commission on Human Relations (FCHR) and with the Equal Employment Opportunity Commission (EEOC), within a statutorily prescribed period. The deadline to file a “Charge of Discrimination” with the EEOC is 300 days from the occurrence of the last act of harassment and the FCHR deadline is 365 days from the occurrence of the last act of harassment. The agencies have 180 days to investigate the claim. At the end of the 180 days, an employee has the right to then request the right to sue from the various agencies. When granted, the employee must file the lawsuit within 90 days of receiving the right to sue.

Damages

Under both Florida and Federal law, an employee who is subject to sexual harassment is entitled to recover, among other remedies, mental anguish, embarrassment, psychological and psychiatric injuries, emotional pain and suffering, as well as punitive damages.

If you have any questions on this or any other area of the law, please CONTACT US, either by e-mail on this site or by phone. We at Samole & Berger, P.A. look forward to working with you.