A hostile work environment is a form of harassment.

Harassment

Florida employers should be aware that harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act of 1967, (ADEA), the Americans with Disabilities Act of 1990, (ADA), and the Florida Civil Rights Act (FCRA).

In Florida, harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Federal and Florida anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. This is important for Florida businesses to understand and demonstrates why it can be helpful to use an experienced discrimination lawyer to conduct or assist in hostile work environment investigations. To be unlawful in Florida, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.

Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances in Florida, including, but not limited to, the following:

•          The harasser can be the victim's supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
  

•          The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
  

•          Unlawful harassment may occur without economic injury to, or discharge of, the victim.
  

Prevention is the best tool to eliminate harassment in the workplace, and that is what the Law Office of David Miklas focuses on to help Florida employers avoid costly lawsuits. Florida employers are encouraged by our law firm to take appropriate steps to prevent and correct unlawful harassment, including training managers and staff. Florida businesses should clearly communicate to employees that unwelcome harassing conduct will not be tolerated. They can do this by establishing an effective complaint or grievance process, providing anti-harassment training to their managers and employees, and taking immediate and appropriate action when an employee complains. Businesses in Florida should strive to create an environment in which employees feel free to raise concerns and are confident that those concerns will be addressed.

The EEOC encourages Florida employees to inform the harasser directly that the conduct is unwelcome and must stop.  Florida businesses should clearly advise their employees to report harassment to management at an early stage to prevent its escalation.

Employer Liability for Harassment

In Florida, in order for an employee to prevail on a hostile work environment claim, the employee must demonstrate a basis for employer liability. In Florida, the basis of an employer's liability for a hostile environment depends on whether the harasser is the victim's supervisor or merely a coworker.

An employer is automatically liable for harassment by a supervisor(with immediate or successively higher authority over the employee) that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. However, if the supervisor's harassment results in a hostile work environment, the Florida employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

When a supervisor is accused of creating a hostile work environment, the first element of the company’s affirmative defense is that the employer exercised reasonable care to prevent and promptly correct the harassing behavior. A Florida employer may argue that it satisfies this element, because there is an adequate anti-harassment policy in place. However, a federal District Court in Florida has explained that, while proof that an employer had promulgated an anti-harassment policy with a complaint procedure is relevant when analyzing this element, having such an anti-harassment policy is not sufficient in itself to satisfy this element.  The Florida federal court provided employers with the guidance that just having an anti0harassment policy isn’t enough because the company still must also show that it acted in a reasonably prompt manner in responding to the employee’s complaints of a hostile work environment.

In a supervisor hostile work environment lawsuit in the Middle District of Florida, a large employer (Rooms To Go) argued that it acted promptly to correct the harassing behavior by having the Regional Manager address the sales force on proper behavior. The Court, however, found that a genuine issue of material fact existed regarding whether this was sufficient given that: (1) the Regional manager did not address the sales force for over a year, and (2) despite four complaints of discrimination to the manager and director of Human Resources, the employer did not investigate the complaints until it received the charges of discrimination from the EEOC. The Florida District Court specifically noted that an employer’s inadequate investigation into a complaint is relevant if the substantive measures taken by the employer are not sufficient to address the harassing behavior). This Florida litigation gives guidance to businesses in Florida that they should not sit around and wait to see whether they receive a charge of discrimination from the EEOC.  Rather, it could be wise to conduct an internal investigation into the allegations of hostile work environment when the employer receives a complaint from an employee.

A Florida business will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.  An employee who complains about harassment by a coworker must prove either actual or constructive knowledge of the employer.

Thus, even if an employee can show that his employer had actual or constructive knowledge of the co-worker harassment, the employer's expeditious remedial response will exempt it from liability. This means that in Florida, an employer's legal duty in co-employee sexual harassment cases will be discharged if the business takes reasonable steps to discover and rectify acts of harassment of its employees.  Remedial action by a Florida employer will relieve it of liability for the co-employee's harassment only if such action is reasonably calculated to prevent further harassment.

When investigating allegations of harassment, the EEOC looks at the entire record: including the nature of the conduct, and the context in which the alleged incidents occurred. A determination of whether harassment is severe or pervasive enough to be illegal is made on a case-by-case basis.

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Law Office of David Miklas, P.A.

Labor & Employment law - Employers only