CENTRAL FLORIDA HOSTILE WORK ENVIRONMENT HARASSMENT LAWYERS

Harassment of an employee because of his or her race, color, national origin, sex (whether or not of a sexual nature), pregnancy, religion, age, or disability is a form of unlawful discrimination. Employees have the right to work in an environment where they are not subjected to discriminatory intimidation, abuse, and insult on the basis of race, color, national origin, sex (whether or not of a sexual nature), pregnancy, religion, age, or disability. No one should have to tolerate the indignity and degradation of harassment in the workplace because of his or her protected characteristic. Although they are legally required to provide employees with a work environment free from harassment on the basis of their protected characteristics, employers often fail to take appropriate action to protect their employees from hostile work environment harassment in the form of offensive jokes, slurs, epithets, insults, threats, and physical assaults. Having long battled employers who failed to protect their employees from demeaning and humiliating harassment, our Ocala based employment harassment attorneys will vigorously protect your rights and hold your employer accountable for the harassment.

Laws Governing Hostile Work Environment Harassment

Title VII of the Civil Rights Act of 1964 (Title VII), which is federal law, protects employees against harassment on the basis of race, color, national origin, sex, and religion. The Age Discrimination In Employment Act (ADEA), which is also federal law, protects employees against harassment on the basis of age. The Americans With Disabilities Act (ADA), which is another federal law, protects employees against harassment on the basis of disability

The Florida Civil Rights Act (FCRA), which is Florida law, protects employees against harassment on the basis of race, color, national origin, sex, pregnancy, religion, age, disability, and marital status. Because the FCRA was patterned after federal civil rights statutes, harassment claims under the FCRA are evaluated using the same framework as that used in Title VII, ADEA, and ADA cases.

Types Of Behavior Constituting Harassment

The types of behavior constituting harassment on the basis of race, color, national origin, sex (whether or not of a sexual nature), pregnancy, religion, age, or disability which creates a hostile work environment may take a variety of forms.

Racial Harassment

Racial harassment includes racial comments, racial slurs, racial insults, racial jokes, racial drawings, racial code words, remarks reflecting racial stereotypes, physical aggression, and treating the employee differently and less favorably than employees of another race.

National Origin Harassment

National origin harassment includes derogatory national origin or ethnic based remarks, insults, or jokes, derogatory comments about the employee’s place of birth or country of origin, remarks reflecting stereotypes about the employee’s place of birth or country of origin, physical aggression, and treating the employee differently and less favorably than employees from another country.

Sexual Harassment

Sexual harassment includes sexual advances, requests for sexual favors, sexual remarks, sexual propositions, touching, promising job benefits in exchange for sexual acts, pornography in the workplace.

Sex Or Gender Based Harassment

Sex or gender based harassment which is not of a sexual nature includes sexist remarks, gender-based insults and epithets, gender-based derogatory language, remarks reflecting sex or gender stereotyping, physical aggression, and treating the employee differently or less favorably from employees of the opposite sex.

Pregnancy Harassment

Pregnancy harassment includes pregnancy-related insults, pregnancy-related jokes, pregnancy-related derogatory remarks, remarks expressing anger about the employee’s pregnancy, remarks reflecting stereotypes about pregnancy or pregnant employees, and treating the employee differently or less favorably from employees who are not pregnant.

Religious Harassment

Religious harassment includes derogatory or offensive comments about an employee’s religion, religious beliefs, or religious practices, and treating the employee differently or less favorably than employees having different a religion, religious beliefs, or religious practices.

Age Harassment

Age harassment includes ageist remarks, age-based insults, age-based slurs, age-based jokes, age-based derogatory remarks, remarks reflecting age stereotyping, physical aggression, and treating the employee differently or less favorably from substantially younger employees.

Determining Whether A Work Environment Is Hostile

In order for workplace harassment to violate federal or Florida law, the harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile working environment. In determining whether workplace harassment is sufficiently severe or pervasive enough to create a hostile working environment, courts look at all the circumstances regarding the nature of the victim’s work environment. In examining the totality of the circumstances, courts have emphasized that there is no magic number of harassing incidents required in order to establish a hostile work environment. In evaluating whether the harassing conduct is sufficiently severe or pervasive to create a hostile work environment, courts consider the following factors:

• * The frequency of the harassment.
• * The severity of the harassment.
• * Whether the harassment is physically threatening or humiliating, or a mere offensive utterance.
• * Whether the harassment interferes with the employee’s work performance.

There is no mathematically precise test for determining whether a hostile work environment exists because the harassment need not be both severe and pervasive to create a hostile work environment. Instead, the harassment must be severe or pervasive. In other words, one or the other will do. This means that a one or two incidents of harassment may establish a hostile work environment if the conduct is severe and threatening.

Scope Of Prohibited Harassment

Under federal and Florida law, employees are protected against harassment based on race, color, national origin, sex (whether or not of a sexual nature), pregnancy, religion, age, or disability from co-workers, supervisors, management, clients, and customers.

Harassment Of Others In Workplace

Because the question of whether workplace harassment is sufficiently severe or pervasive enough to create a hostile working environment can only be determined by looking at all the circumstances regarding the nature of the victim’s work environment, prohibited workplace harassment is not limited to harassment directed at the victim. Rather, prohibited workplace harassment includes harassing conduct which occurs in the victim’s presence but does not necessarily target the victim. An employee may be the victim of harassment without being its intended victim. In fact, harassment of others in the workplace exacerbates the effect of harassment the victim experiences individually. Thus, the determination of whether the victim works in a hostile work environment is not based solely on actions aimed directly at the victim, but also includes the harassment of others in the workplace.

Evidence of acts of harassment against other employees is an important factor in evaluating a hostile work environment harassment claim. The harassment of others contributes to the overall hostility of the working environment for the victim and becomes part of the victim’s hostile work environment. As a result, a victim can use harassment directed at other employees or customers in establishing that he or she worked in a hostile work environment. For example, when the harasser makes derogatory racial or ageist remarks about other employees or customers in the presence of the victim, the harassment is part of the victim’s work atmosphere and evidence that a hostile work environment existed. Evidence of harassment of others in the workplace can also be used to establish that the employer knew or should have known that harassment was occurring.

Employer Liability For Harassment

An employer’s liability for hostile work environment harassment depends on the status of the harasser. The status of the harasser can be divided into four categories: (1) a co-employee of the victim; (2) a non-employee, such as a customer or client; (3) a supervisor of the victim; and (4) a member of the upper echelons of management.

Harassment By Co-Employee Or Non-Employee

When the harasser is a co-employee or a non-employee, the victim has the burden of proof in establishing the employer’s liability. The victim must show that the employer knew or should have known of the harassment but failed to take prompt and effective remedial action. When an employer knows or should have known about harassing conduct, the employer is required to take immediate and effective corrective action to end the harassment and prevent the harassment from recurring. In fulfilling its duty to take prompt and effective remedial action, an employer is generally required to conduct a thorough investigation and to take disciplinary action, ranging from reprimand to termination, against the offending harasser. The remedial action taken must reflect the severity of the harassing behavior. Courts have determined that when an employer undertakes no remedial action or the remedial action undertaken does not end the current harassment against the victim, the employer is liable for both the past harassment and any future harassment of victim by the same harasser.

Harassment By Supervisor

When the harasser is a supervisor of the victim, the U.S. Supreme Court has established a two-part test regarding what the employer must prove in order to avoid liability for a claim of hostile work environment harassment. Under this test, the employer has the burden of proof in establishing two necessary elements: (1) the employer exercised reasonable care to prevent and promptly correct any harassment; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. If the employer proves both elements of the test, then the employer is not liable for the supervisor hostile work environment harassment. If the employer cannot prove both elements of the test, then the employer is liable for the supervisor hostile work environment harassment.

In order to demonstrate that it exercised reasonable care to prevent harassment, an employer generally must show that it has an anti-harassment policy with a complaint procedure for employees to report harassment. The anti-harassment policy used by the employer must be reasonably designed and reasonably effectual. If the anti-harassment policy has not been successful in eradicating harassment in the workplace, then the anti-harassment policy is defective and dysfunctional. Even if the employer can show that its anti-harassment policy is reasonably designed and reasonably effectual, the employer cannot establish that it exercised reasonable care to prevent harassment when it implements the policy in bad faith or renders the policy ineffectual by unreasonable behavior. For example, the employer implements the policy in bad faith or renders the policy in effectual by unreasonable behavior when the victim is threatened with retaliation for reporting harassment or instructed not to report the harassment in compliance with the policy.

The employer’s duty to exercise reasonable care to promptly correct harassment by a supervisor essentially mirrors the employer’s duty to take prompt and effective remedial action to correct harassment by a co-employee. Just like when the harasser is a co-employee, when an employer knows or should have known about harassment by a supervisor, the employer is required to take immediate and effective corrective action to end the harassment and prevent the harassment from recurring. Under both standards of liability therefore, an employer’s notice of the harassing conduct is of paramount importance. The difference between the two standards of liability is which party bears the burden of proof. When the harasser is a co-employee, the employee bears the burden of establishing the employer’s liability for the hostile work environment harassment. When the harasser is a supervisor, the employer bears the burden of establishing that it is not liable for the hostile work environment harassment.

Harassment By Supervisor & Tangible Employment Action

When an employee is subjected to harassment by a supervisor, the harassment will sometimes involve the taking of a tangible employment action against the employee. A tangible employment action includes the following:

• * A reduction in pay or hours
• * A demotion or failure to promote
• * A suspension without pay
• * Termination
• * Any other employment action that inflicts direct economic harm against the employee. For example, the supervisor takes customers away from the victim, deprives the victim of sales leads, or makes the victim work economically disadvantageous shifts.

When harassment by a supervisor involves the taking of a tangible employment action against the employee, the two-part test established by the U.S. Supreme Court regarding employer liability for harassment by a supervisor does not apply. Rather, when harassment by a supervisor culminates in the taking of a tangible employment action against the victim, the U.S. Supreme Court has determined that the employer is automatically or strictly liable for the supervisor hostile work environment harassment. In other words, an employer is always liable for hostile work environment harassment by a supervisor that culminates in a tangible employment action against the victim.

Harassment By High-Level Manager

When the harasser is a member of the upper echelons of management of the company, the employer is automatically or strictly liable for the hostile work environment harassment. Because the actions of a high-level manager are automatically attributable to the employer, the two-part test established by the U.S. Supreme Court regarding employer liability for harassment by a supervisor does not apply. In other words, an employer is always liable for hostile work environment harassment by a member of the upper echelons of management of the company. U.S. Supreme Court precedent suggests that the following company officials constitute a member of the upper echelons of management for purposes of holding the employer automatically or strictly liable for the hostile work environment harassment: a president, an owner; a proprietor; a partner; a corporate officer, or a supervisor holding a sufficiently high position in the management hierarchy of the company.

Employer Knowledge of Harassment

An employer’s knowledge of the harassment triggers a duty to take prompt and effective remedial action to prevent recurrence of the harassment. There are two types of employer knowledge: actual knowledge and constructive knowledge.

Actual Knowledge

Generally, an employer acquires actual knowledge of the harassment through a complaint by the victim. However, actual knowledge of the harassment does not have to come in the form of a complaint by the victim. If the harassing conduct against the victim is reported by a co-employee, the employer is deemed to have actual knowledge of the harassment. Other complaints against the same harasser—whether made before the victim was harassed by the same harasser or while the victim was being harassed by the same harasser—can be used to establish the employer’s actual knowledge of the harassment against the victim even if the victim did not report the harassment. Prior or contemporaneous complaints against the same harasser also show that the employer did not take effective remedial steps to prevent the subsequent harassment of the victim or end the contemporaneous harassment of the victim.

Constructive Knowledge

An employer is deemed to have constructive knowledge when the harassment was so pervasive that the employer should have been aware of it. In other words, if the employer had exercised reasonable care, it would have known what was going on. Most often, constructive knowledge of the harassment is established by showing that a management-level employee was present when the harassing behavior occurred or the same harasser engaged in harassment towards other employees or customers.

When Knowledge Irrelevant

There are two circumstances where an employer’s knowledge of the harassment is irrelevant to the issue of employer liability. First, an employer’s knowledge of the harassment is irrelevant when the hostile work environment harassment by a supervisor culminates in the taking of a tangible employment action against the victim. Second, an employer’s knowledge of the harassment is irrelevant when the harasser is a member of the upper echelons of management of the company. Under both circumstances, an employer’s knowledge of the harassment is irrelevant because the employer is automatically or strictly liable for the hostile work environment harassment. As a result, an employer cannot immunize itself from liability by claiming that it did not have actual or constructive knowledge of the harassing behavior.

Protection Against Retaliation

As discussed more fully in our section pertaining to retaliation, employees are protected against retaliation when they complain about harassment on the basis of race, color, national origin, sex, pregnancy, religion, age, or disability in the workplace. Federal and Florida law prohibit employers from subjecting employees to an adverse employment action, such as reduction in pay or hours, demotion, denial of promotion, suspension, and termination, in retaliation for having complained about such harassment in the workplace.

Constructive Discharge

When an employee is subjected to hostile work environment harassment, the employee’s abusive work environment may give rise to a claim for constructive discharge. A constructive discharge occurs when an employee is compelled to involuntarily resign in order to escape the hostile work environment.

In order to hold an employer liable for a claim of constructive discharge, the employee must establish that the work environment was so unbearable that a reasonable person in that person’s position would be compelled to resign When an employee is unable to establish a hostile work environment harassment claim, the employee is also unable to support a claim of constructive discharge. Before finding a constructive discharge claim, courts generally require a victim of hostile work environment harassment to show that he or she complained about the harassment, afforded the employer a reasonable time and opportunity to correct the harassment, and the harassment continued despite the complaint and opportunity to correct the harassment. In other words, the victim’s complaints fell on deaf ears. When the victim of hostile work environment harassment quits before complaining or immediately after complaining about the harassment, courts generally hold that the employee was not constructively discharged because he or she did not give the employer a reasonable opportunity to correct the harassment.

Contact Us Today For A Free Initial Consultation

If you are experiencing or have experienced harassment in the workplace, please contact us for a free initial consultation with our Central Florida employment harassment attorneys. You will receive personalized and individual attention from our employment law attorneys. We will use our in-depth knowledge and extensive experience in handling hostile work environment harassment claims to vigorously protect your rights. Our employee rights law firm takes hostile work environment harassment cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Based in Ocala, Florida and representing employees throughout Central Florida, we are ready to take your workplace harassment case and fight for your employee rights.