Sexual harassment lawyers in Marion County, FL serving central Florida
For almost two decades, our Marion County, Florida sexual harassment lawyers have dedicated their practice to representing sexual harassment victims. Although the U.S. Supreme Court ruled more than twenty years ago that same-sex sexual harassment is unlawful under federal law, same-sex sexual harassment remains a serious problem in the workplace. In many same-sex sexual harassment cases, victims are forced to work in a wretchedly hostile environment because employers often adopt a “see no evil, hear no evil” strategy to same-sex sexual harassment. Based in Ocala, Florida and representing employees throughout Central Florida, including Citrus, Marion, and Alachua Counties, our Marion County, Florida sexual harassment attorneys are committed to using the anti-discrimination laws to help sexual harassment victims survive their ordeal and vindicate their statutory rights.
Sexual Harassment Is Unlawful Sex Discrimination
Title VII of the Civil Rights Act of 1964 (Title VII), which is federal law, and the Florida Civil Rights Act (FCRA), which is Florida law, prohibit employers from discriminating against employees on the basis of sex. Male as well as female employees are protected against sex discrimination under Title VII and the FCRA. Title VII and the FCRA protect individuals against discrimination on the basis of sex with respect to the entire spectrum of the compensation, terms, conditions, or privileges of employment.
As explained by the U.S. Eleventh Circuit Court of Appeals in Gupta v. Florida Bd. of Regents, 212 F.3d 571 (11th Cir. 2000), “sexual harassment is a form of sex discrimination prohibited by Title VII” and the FCRA. Sexual harassment which is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile working environment violates Title VII and the FCRA. “The very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because” of their gender, as observed by the U.S. First Circuit Court of Appeals in O’Rourke v. City of Providence, 235 F.3d 713 (1st Cir. 2001), “offends Title VII’s broad rule of workplace equality.”
Definition Of Same-Sex Sexual Harassment
Under Title VII and the FCRA, unlawful sexual harassment is not limited to harassment from members of the opposite sex. Instead, Title VII and the FCRA also forbid same-sex sexual harassment. Same-sex sexual harassment occurs when both the harasser and the victim are of the same sex. Title VII and the FCRA prohibit same-sex sexual harassment regardless of the harasser’s or victim’s sexual orientation. Thus, a claim for same-sex sexual harassment is not dependent on the sexual orientation of the individuals involved. The legal requirements for establishing a claim of same-sex sexual harassment are the same as those for cases involving harassment by members of the opposite sex.
Same-Sex Harassment Must Occur Because Of Sex
In Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the U.S. Supreme Court unanimously held that Title VII does provide a cause of action for same-sex sexual harassment. Under Oncale, same-sex sexual harassment is unlawful to the extent that it occurs because of the victim’s sex. In other words, as observed by the U.S. Seventh Circuit Court of Appeals in Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir. 2000), same-sex sexual harassment is unlawful when it constitutes discrimination “against women because they are women and against men because they are men.” Thus, the focus in a same-sex sexual harassment case is on whether there is evidence that the victim was harassed because of his or her sex. Simply stated, the victim in a same-sex sexual harassment case must prove that he or she was the target of the harassment because of his or her sex. So long as the victim demonstrates that he or she would not have been treated in the same way by the harasser had he or she been a member of the other sex, the victim has proven that the harassment occurred because of his or her sex.
Proving Victim Was Harassed Because Of Sex
As observed by the U.S. Third Circuit Court of Appeals in Bibby v. Phil. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001), “the question of how to prove that same-sex harassment is because of sex is not an easy one to answer.” In Oncale, the Supreme Court explained that when the harasser and the victim are of the opposite sex, it is reasonable to infer that the harasser is acting because of the victim’s sex. For example, when a man subjects a woman to sexual propositions or physical touching of a sexual nature, it reasonable to infer that his behavior is motivated by her sex. Stated another way, it is reasonable to assume that the man is engaging in such behavior towards the woman because she is a woman. Because the woman is being targeted because of her gender, she is being discriminated against because of her sex. However, such inferences are not as easily made when the harasser and the victim are of the same sex. Consequently, courts have developed several ways for proving that same-sex sexual harassment occurred because of the victim’s sex, including evidence showing that: (1) the harasser is homosexual; (2) the harasser was motivated by sexual desire or sexual attraction towards the victim; and (3) the harasser was motivated by a belief that the victim did not conform to the stereotypes of his or her gender.
Harasser Is Homosexual
As determined by the Oncale Court, one method of proving that the victim was harassed because of his or her sex is through “credible evidence that the harasser was homosexual.” As the U.S. Eleventh Circuit Court of Appeals explained in Fredette v. BVP Management Associates, 112 F.3d 1503 (11th Cir. 1997), the “reasonably inferred motives of the homosexual harasser are identical to those of the heterosexual harasser—i.e., the harasser makes advances towards the victim because the victim is a member of the gender the harasser prefers.” Thus, evidence that the harasser in a same-sex sexual harassment is gay is sufficient to prove that the harassment occurred because of the victim’s sex.
Harasser Motivated By Sexual Attraction
Another way to establish that the victim was harassed because of his or her sex is by showing that the harasser was motivated by sexual desire or sexual attraction towards the victim. In describing the type of behavior that can create a sexual hostile work environment, the U.S. Supreme Court in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) expressly included “unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature.” Courts have routinely applied this definition when describing the kind of workplace sexual conduct that constitutes sexual harassment for purposes of Title VII and the FCRA.
When the harasser subjects the same-sex sexual harassment victim to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, such sexual behavior reflects the harasser’s conduct was borne of sexual desire or sexual attraction towards the victim. For example, when a male harasser subjects a male victim to sexual propositions or physical touching of a sexual nature, it is reasonable to infer that the harasser is sexually attracted to the victim. Under such circumstances, the male victim is being targeted because of his sex and the conduct is inescapably linked to his sexuality. In other words, the conduct is a traditional form of sexual harassment because it is explicitly sexual in nature. Because the harasser’s behavior is explicitly sexual in nature, the conduct satisfies Oncale’s because of sex requirement. As observed by the U.S. Sixth Circuit Court of Appeals in Yeary v. Goodwill Industries-Knoxville, Inc., 107 F.3d 443 (6th Cir. 1997), “when a male sexually propositions another male because of sexual attraction, there can be little question that the behavior is a form of harassment that occurs because the propositioned male is a male—that is, because of sex.”
Although the explicitly sexual nature of the harasser’s behavior does not necessarily prove that the harasser is gay, sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature by the harasser towards the victim suggest that the harasser might be sexually oriented towards members of the same sex. That possibility is sufficient to establish that the harasser harassed the victim because the victim is someone of the same sex.
Moreover, it is not necessary to establish that the harasser is homosexual when the harasser engages in explicitly sexual conduct. In Pedroza v. Cintas Corp. No. 2, 397 F.3d 1063 (8th Cir. 2005), the U.S. Eighth Circuit Court of Appeals rejected the employer’s argument that because the female same-sex harasser had children and had been in a long term relationship with a man, the female victim could not prove that she was harassed because of her sex. The Eighth Circuit explained that “these facts only tend to prove that [the harasser] was not strictly homosexual” and “do not preclude a jury from finding that [the harasser] was motivated by some degree of homosexual desire towards [the victim].” The Eighth Circuit reasoned that “it would be naïve and artificial for us to conclude otherwise.”
Victim Does Not Conform To Sex Stereotypes
Still another method of establishing that the victim was harassed because of his or her sex is by showing that the harasser was motivated by the belief that the victim does not conform to the stereotypes of his or her gender. This theory of sex discrimination is known as “gender stereotyping” or “sex stereotyping.” Under the gender or sex stereotyping method for proving same-sex sexual harassment, the harasser is acting to punish or abuse the victim for perceived noncompliance with gender stereotypes. The gender or sex stereotyping theory of sex discrimination was first recognized by the U.S. Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In that case, the Supreme Court ruled that when an employee is subjected to an adverse employment action because the employee does not conform to gender or sex stereotypes, the employee has been discriminated against on the basis of sex in violation of Title VII.
In the context of male same-sex sexual harassment, the male victim is harassed because he does not comply with societal stereotypes of how a man should act, appear, or behave. For example, evidence showing that the male harasser referred to the male victim as “princess,” “she” or “her,” or “sweetheart,” or stated that the male victim is “too feminine” or does not “look like a man,” reflect that the victim was harassed because of his perceived failure to conform with societal stereotypes about how men ought to act, appear, or behave. Because the male employee was harassed based on the harasser’s belief that he did not conform to the stereotypes of his gender, the victim was harassed because of his sex.
Likewise, in the context of female same-sex sexual harassment, the female victim is harassed because she does not comply with societal stereotypes of how women ought to act, appear, or behave. For example, evidence showing that the female harasser referred to the female victim as a “man,” “he” or “him,” or “too masculine,” or stated that the female victim does not “act like a woman” or “dress like a woman,” reflect that the victim was harassed because of her perceived failure to conform with societal stereotypes about how women ought to act, appear, or behave. Because the female employee was harassed based on the harasser’s belief that she did not conform to the stereotypes of her gender, the victim was harassed because of her sex.
When an employee is harassed for failure to conform to the stereotypes of his or her gender, the employee has been discriminated against on the basis of sex in violation of Title VII and the FCRA. As observed by the U.S. Ninth Circuit Court of Appeals in Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000), “discrimination because one fails to act in the way expected of a man or woman is forbidden under Title VII.” Thus, the gender or sex stereotyping method for proving same-sex sexual harassment enables a man to base a same-sex sexual harassment claim on evidence that other men harassed him because he did not meet stereotyped expectations of masculinity, and enables a woman to base a same-sex sexual harassment claim on evidence that other women harassed her because she did not meet stereotyped expectations of femininity.
Employers Must Stop Same-Sex Harassment
As observed by the U.S. Court of Appeals for the District of Columbia in Curry v. District of Columbia, 195 F.3d 654 (D.C. Cir. 1999), “Title VII does not permit employers to stand idly by once they learn that sexual harassment has occurred.” Once an employer knows or should know that an employee is being subjected to same-sex sexual harassment, a remedial obligation is triggered. The employer is obligated to take immediate and appropriate remedial action to stop the harassment and prevent the harassment from recurring. As part of an employer’s remedial obligation, as explained by the U.S. District Court for the Southern District of New York in Hill v. Children’s Village, 196 F.Supp.2d 389 (S.D. N.Y. 2002), “Title VII imposes a duty on the employer to conduct a prompt and thorough investigation” of the victim’s sexual harassment complaint. If the employer takes no remedial action or inadequate steps are taken to prevent the recurrence of the harassment, then the employer can be held liable under Title VII and the FCRA for the same-sex sexual harassment.
Victims Are Protected From Retaliation
Under Title VII and the FCRA, employees are protected from retaliation when they complain about perceived same-sex sexual harassment in the workplace. To be protected against retaliation under Title VII and the FCRA, an employees is not required to prove that the same-sex sexual harassment constituted unlawful sexual harassment in violation of Title VII or the FCRA. Instead, an employee is only required to show that he or she had a good faith, reasonable belief that the same-sex harassing behavior was unlawful discrimination. In other words, employees are protected from retaliation even if they are wrong about whether the same-sex harassing conduct constituted unlawful sexual harassment in violation of Title VII or the FCRA.
Employment Law Blog
As part of an on-going commitment to assist and educate employees in protecting themselves against abusive employment practices of employers, our Marion County, Florida sexual harassment attorneys offer more information about same-sex sexual harassment in their employment law blog.
Consultation With Ocala Sexual Harassment Lawyers
Based in Ocala, Florida and representing employees throughout Central Florida, including Citrus, Marion, and Alachua Counties, our Marion County, Florida sexual harassment attorneys have been litigating sexual harassment cases in Florida state and federal courts for almost twenty years. If you have experienced same-sex sexual harassment or have questions about an employer’s obligation to protect you from same-sex sexual harassment, please contact our Marion County, Florida sexual harassment lawyers for a free initial consultation. You will receive personalized and individual attention from our employment law attorneys. Our employee rights law firm takes sexual harassment cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Our Marion County, Florida sexual harassment attorneys are ready to take your case and fight for your rights.