How Do Sexual Harassment Victims Prove That The Sexual Harassment Was Unwanted?
In the sexual harassment litigation context, our sexual harassment lawyers in Sumter County, Florida have learned, employers frequently argue that the victim cannot establish that the sexual harassment she endured was unwanted. In Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959 (8th Cir. 1993), for example, the employer incredulously argued that the victim could not prove that the workplace sexual harassment was unwanted because she posed nude for a nationally distributed magazine. An employer argument which the United States Eighth Circuit Court of Appeals emphatically condemned and rejected.
Although proof that the sexual harassment was not unwanted may include evidence that the victim engaged in sexually explicit behavior in the workplace, employers rarely restrict their arguments to such evidence. Instead, employers will invariably utilize non-sexual behavior when attempting to establish that victim cannot show that the sexual harassment was unwanted. For example, employers will claim that the victim used vulgar language, told inappropriate jokes, or participated in gossip in the workplace. Such behavior by the victim in the workplace, according to employers, establishes that the victim did not consider the sexual harassment unwanted and did not view the sexual harassment as creating a hostile working environment. In other words, employers frivolously maintain that when a victim engages in such behavior in the workplace, she waives her legal protection against sexual harassment.
In this article, our sexual harassment lawyers in Sumter County, Florida explain how the decision in Colo v. NS Support, Inc., 2022 WL 2528266 (D. Idaho July 7, 2022) shows that sexual harassment victims can establish that the sexually harassing behavior was unwanted by complaining about the behavior.
Sexual Harassment Must Be Unwelcome
In order to prove a sexual harassment claim, a victim must establish that the sexual harassment was unwanted or unwelcome. As explained by the court in Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982), conduct is unwanted or “unwelcome when the employee did not solicit or incite it, and the employee regards the conduct as undesirable or offensive.” “In determining whether conduct is unwelcome,” as the court in Quick v. Donaldson Co., 90 F.3d 1372 (8th Cir. 1996) observed, courts “should consider whether the [victim] indicated, by her conduct, that the alleged harassment was unwelcome.” Under well-established law, the victim indicates by her conduct that the sexual harassment was unwanted or unwelcome by telling the harasser to stop the behavior or by complaining about the behavior.
Sexual Harassment Lawsuit
In Colo, a woman named Colo brought a sexual harassment lawsuit against her former employer, NS Support, Inc. (“NS Support”), pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII prohibits employers from discriminating against employees on the basis of sex. Under long standing law, sexual harassment is a form of sex discrimination forbidden by Title VII. To violate Title VII prohibition against sex discrimination, sexual harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile working environment. Colo alleges that, during her employment NS Support, she was sexually harassed in violation of Title VII.
NS Support is a neurosurgical clinic. Colo was employed as a part-time receptionist and later became a full-time surgery scheduler. Colo alleges that her supervising physician, Montalbano, subjected her to harassment during the entire course of her almost ten-year employment, but with increasing frequency in the last several months. Colo claims that Montalbano “made frequent sexual comments to her and to other female employees in the presence of Colo” and “spoke disparagingly about [multiple] female patients.” Colo also alleges that she witnessed Montalbano engage in “conduct at the office” of a sexual nature.
Complaint Shows Harassment Unwanted
NS Support filed a motion with the trial court seeking dismissal of Colo’s sexual harassment claim. In moving for dismissal, NS Support argued that Colo could not establish that the alleged sexual harassment was unwanted. In support of its argument, NS Support pointed to evidence showing that Colo engaged in much of the same conduct of which she complains. For example, NS Support claimed that Colo would give and receive messages from her co-workers, and that Colo regularly instigated and participated in office banter of a sexual nature, both verbally and via email. NS Support further claimed that Colo would “laugh at adult humor,” “tell inappropriate jokes,” and “flirt with the men in the clinic.” The trial court rejected NS Support’s argument.
In rejecting NS Support’s argument, the trial court observed that “Colo has not come forward with any evidence to dispute NS Support’s contentions regarding her own conduct.” However, the trial court observed that Colo told a co-worker “of her intent to report the misconduct of Montalbano to human resources of NS Support, specifically related to his harassing behavior toward her and other employees of NS Support.” An employee’s “act of reporting harassing conduct,” the trial court explained, “is indicative of whether [the employee] found such conduct to be unwelcome,” and courts have “found conduct to be unwelcome if the [employee] complained about it.” In applying this principle, the trial court determined that Colo “has identified evidence sufficient” to establish that she regarded the alleged sexual harassment as unwanted or unwelcome.
Free Consultation For Harassment Victims
One of the most significant decisions sexual harassment victims must make is which sexual harassment lawyers to consult regarding their rights and remedies under federal employment discrimination law. As part of our dedication to assisting sexual harassment victims, an experienced sexual harassment attorney will speak with you personally and you will receive the individualized attention your case deserves. We offer free confidential case evaluations for employees, and you will not have to pay to speak with our sexual harassment lawyers regarding your rights. We are available for consultation at your convenience, including scheduling telephone consultations for evenings and weekends.
Sumter County Sexual Harassment Lawyers
Based in Ocala, Florida and representing workers throughout Florida, our sexual harassment attorneys in Sumter County, Florida have litigated sexual harassment cases in Florida courts for more than twenty years. If you have endured sexual harassment in the workplace or have questions about an employer’s obligation to protect you from sexual harassment in the workplace, please contact our office for a free consultation with our sexual harassment lawyers in Sumter County, Florida. Our employee rights law firm takes sexual harassment cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery, and our attorney’s fees come solely from the monetary award that you recover.
