Atlanta Employment Lawyer Blog

Actions constituting sexual harassment or those that create a hostile work environment can take many forms such as lewd comments, inappropriate touching, and sexually explicit joke telling. Despite the sexual nature of the harassment – actual sexual desire or attraction need not exist to support an inference of sexual discrimination.

In a recent sexual harassment case, Rosario v. Dep’t of Army, the U.S. Court of Appeals for the First Circuit court ruled that the lower court’s focus on whether a sexual attraction between the harasser and the employee existed was misdirected. Citing Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the court noted that no requirement exists that the hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures. Rather, circumstantial evidence showing a hostile work environment is sufficient.

In Rosario, the supervisor’s actions in commenting on an employee’s body and underwear everyday, calling co-workers’ attention to her body and underwear and repeating sexually oriented jokes could create an inference that the superior’s behavior was improperly motivated by gender. As a result, the Court held that a reasonable jury could find that the employee was exposed to harassment that differed in both kind and degree from that imposed on male employees.

Here, the supervisor created a work environment that ultimately harmed a female employee’s emotional stability and health. Whether the supervisor had a crush or was attracted to the employee was irrelevant to the existence of a hostile environment.

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In a recent sexual harassment case, an administrative assistant asserted that her company’s response to her complaints of sexual harassment under Title VII of the 1964 Civil Rights Act created a hostile work environment. The U.S. District Court for the Eastern District of Pennsylvania disagreed.

In Sheer v. Motorola Inc., E.D. Pa., No. 09-209, an administrative assistant became friendly with an engineer at Motorola, exchanging social emails and gifts. The relationship started to decline and the engineer made increasingly sexual and threatening comments. After the administrative assistant complained to Motorola, the engineer was investigated, formally punished and had his duties diminished.
The administrative assistant claimed she was treated differently by co-workers after the complaint, and she subsequently lost her job a year later after a reduction in force. She then filed a lawsuit alleging violations of Title VII as a result of a hostile work environment and retaliation.

Here, Motorola’s response to the assistant’s claim was in question. After the administrative assistant complained, Motorola assembled a security team to investigate, told her to work from home, and provided her with safety advice.
The court concluded that rather than being discriminatory, these actions show that company took the woman’s complaint seriously and invested significant time and resources to resolving the matter quickly and effectively. The court also stated that if they found the company’s actions to assist the woman created a “hostile work environment” employers would be on a ‘razor’s edge’ for fear of liability for investigating too thoroughly or not investigating at all.

The court also determined that the fact that her job was eliminated nearly one year after the woman complained was not sufficient to show retaliation.

If you believe you have been subject to sexual harassment, the first thing to do is seek legal advice. Often the employer will have a policy that requires you to report the harassment to someone in authority. If you fail to do so, you risk losing your right to pursue a sexual harassment claim if the conduct persists. Here, the company responded and took actions to investigate the complaints of harassment. Often, that’s not the case. Many times when an employee complains of harassment, the employer does nothing. In situations where a company fails to respond to a complaint, you have the right to file a sexual harassment charge with the Equal Employment Opportunity Commission (EEOC), the federal agency that investigates all claims of employment discrimination. The EEOC will then investigate the charge and require your employer to investigate.

Continue reading "Security Response Does Not Create Hostile Work Environment" »

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In a surprise decision, the 11th circuit has decided to rehear a claim for alleged sexual harassment and retaliation. Corbitt v. Home Depot involves two men who claim that a male human resources manager made unwanted sexual advances toward the men. When they complained, the men were allegedly fired in retaliation.

Last August the 11th Circuit Court of Appeals, which encompasses Georgia, determined that the men’s claims of sexual harassment were not sufficiently severe or pervasive to constitute sexual harassment under Title VII.

The specific actions complained of included unwanted sexual advances, inappropriate comments over the phone and in person, massages and suggestive comments. They also allege that the human resources manager rubbed up against them when they hugged.

The 11th Circuit issued a revised opinion in December, confirming the dismissal of the sexual harassment claims. However, the retaliation claims were not dismissed.
In March, the court issued an order vacating its previous opinion and requesting an en banc hearing,

Although its impossible to know what the ultimate outcome will be, it seems likely that some of the initial holding will be reversed or modified, and possibly change what constitutes sexual harassment in the 11th circuit. If the dismissal is reversed, the men will be allowed to proceed with their lawsuit.

In the 11th Circuit, in order to prove sexual harassment, you must show that you have been subject to unwelcome conduct that is “sufficiently severe and pervasive” to alter the terms and conditions of your employment.

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The law of sexual harassment requires employees who believe they have been harassed to follow their employers’ anti-harassment procedures—which typically require employees to complain to a high company official in order to allow the company to remedy the situation—before they may file a sexual harassment lawsuit. A recent decision from the Eighth Circuit Court of Appeals, Adams v. O’Reilly Automotive, Inc., illustrates the perils of failing to file a timely internal complaint of sexual harassment.

In Adams, a female employee claimed that her supervisor had sexually harassed her for more than two and a half years. However she never reported the harassment to company officials, and when she did finally make a complaint through the company’s sexual harassment telephone hotline, her supervisor was almost immediately discharged.

The employee subsequently filed a sexual harassment lawsuit, but the employer moved for summary judgment. The company argued that the employee never filed an internal sexual harassment complaint despite the fact that the company had adopted and promulgated a zero-tolerance, multi-channel complaint procedure for sexual harassment claims, which the employee admitted she was aware of.

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As we wrote in a prior post about the case of Reeves v. C.H. Robinson on sexual harassment, an employee complaining about sexual harassment in the workplace must prove that harassment was severe and pervasive, and not merely sporadic or occasional. Unfortunately for the employee in a recent case, Webb-Edwards v. Orange County Sherriff’s Office, even though she experienced considerable harassment from her supervisor, it was not severe and pervasive enough to give rise to a valid claim of sexual harassment.

Elaine Webb-Edwards was a deputy sheriff in the Orange County, Florida Sheriff’s Office. Her supervisor made a number of sexually charged comments that offended her, such as, “you look hot,” and “you’d look better if you’d wear tighter clothes.” On one occasion, when the employee and her supervisor were riding alone in a squad car, and the employee was speaking to her husband on her cell phone about lunch plans, the supervisor grabbed the phone out of the employee’s hands and told her husband, “I don’t know what you’re saying, but I’m eating your wife.”

After the employee complained about these comments, the supervisor stopped making them, but he continued to look at her from time to time in a way that made her feel uncomfortable.

The employee eventually filed a sexual harassment suit in federal court. The County, however, moved for summary judgment, which the court granted, finding that the alleged sexual harassment was not sufficiently severe and pervasive to create an abusive and hostile work environment. On the employee’s appeal, the Eleventh Circuit affirmed the judgment. The court held that even though the comments were made on a regular basis, they made the employee feel uncomfortable, and they were “taunting and boorish,” because they were not physically threatening or humiliating, and the supervisor never actually touched Ms. Webb-Edwards, a reasonable person in her shoes would not have found the supervisor’s conduct sufficiently hostile or abusive to support her claim of sexual harassment. The court did take special pains to note that although it was particularly concerned about the “eating your wife” comment, it concluded that this comment was still not sufficiently abusive, even in conjunction with the other offensive conduct, to establish a sexual harassment claim.

To get a good overview of the current state of sexual harassment law as it applies in the State of Georgia, take a look at the Webb-Edwards case as well as the Reeves case.

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A good sexual harassment case has come out of the Eleventh Circuit Court of Appeals—the federal appeals court for the states of Georgia, Florida, and Alabama. In Reeves v. C.H. Robinson, a female employee claimed that for a period of almost three years there were daily instances of sexually offensive language and conduct in her workplace, including profanity that was derogatory toward women (such as “whore, bitch, tramp, slut” and even more disgusting language that we are too modest to repeat here), sexual jokes, and sexually explicit radio programs that were allowed to play in the office. The offensive conduct, however, was not specifically directed at the employee, and most of it she simply overheard during the course of her workday.

The employee eventually resigned and filed a sexual harassment charge against her employer. The lower court dismissed the case on summary judgment, holding that the harassment was not “based on” the employee’s sex because the conduct was not specifically directed at the employee, and everyone in the workplace—males and females—was exposed to it.

On appeal, the Eleventh Circuit reversed, and reinstated the employee’s case. Analyzing the “based on” requirement of the sexual harassment laws, the court ruled that “sex specific language”— which is language that is more offensive to one sex than the other—satisfies the “based on” requirement, whether or not the sexually harassing conduct was specifically directed at the employee.

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