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Employment
Law : Sexual Harassment
The American Psychological Association estimates
that 71 percent of working women will be
subjected to sexual harassment during their
working careers. Sexual harassment in the
workplace is a violation of both federal and
state law. This page is designed to acquaint you
with the subject of sexual harassment and to
discuss, in general terms, the laws that govern
and protect your rights in this pervasive and
evolving area.
I. FEDERAL LAW
Title VII of the Civil Rights Act of 1964, as
amended in 1972, 1978 and 1991, affords
employees the right to work in an environment
free from discriminatory intimidation, ridicule,
and insult. This law establishes a clear and
explicit federal policy against sexual
harassment in the workplace. The statute, as
interpreted by EEOC regulations and the courts,
gives employees the right to work in an
environment that is free of sexual harassment.
Moreover, the law is clear that an employer is
required to take adequate corrective action to
eliminate sexual harassment from the workplace
and to take necessary steps to prevent its
occurrence in the future. Title VII and the
opinions and regulations interpreting it,
establish an "explicit" "clearly defined" public
policy "condemning sexual harassment in the
workplace . . . ." In enacting Title VII,
Congress "considered the policy against
discrimination to be of the `highest priority.'"
Section 703(a)(1) of Title VII, 42 U.S.C.
§2000e-2(a)(1), makes it an unlawful employment
practice for an employer "to discriminate
against any individual with respect to his . . .
terms, conditions, or privileges of employment
because of such individual's . . . sex." The
Supreme Court has left no doubt that unwelcome
sexual advances and physical contact of a sexual
nature that create a hostile or offensive work
environment violate section 703(a)(1). Meritor
Savings Bank v. Vinson, 477 U.S. 57, 66 (1986).
The Court agreed with the EEOC that "Title VII
affords employees the right to work in an
environment free from discriminatory
intimidation, ridicule, and insult." 477 U.S. at
65, citing 45 Fed. Reg. 74676 (1980). The EEOC's
Guidelines on Discrimination Because of Sex
state specifically that "[u]nwelcome sexual
advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature"
constitute unlawful "sexual harassment" where
"such conduct has the purpose or effect of
unreasonably interfering with an individual's
work performance or creating an intimidating,
hostile, or offensive working environment." 29
C.F.R. § 1604.11(a)(1980). EEOC Policy Guidance,
N-915.035, October 25, 1988. Moreover, in
hostile work environment litigation under Title
VII, the appropriate standard is that of a
reasonable woman under similar circumstances.
Thus, behavior that a reasonable woman would
find objectional is not tolerated under the law
even if many people deem it harmless or
insignificant.
Title VII
places upon an employer the responsibility to maintain a work
environment free of sexual harassment. The courts have
recognized that an employer has the duty, once on notice, to
take remedial action to stop sexual harassment which creates an
offensive work environment or face liability for failing to do
so. Likewise, the EEOC's Guidelines state that an employer is
liable for sexual harassment between fellow employees of which
it knew or should have known, "unless it can show that it took
immediate and appropriate corrective action." 29 C.F.R. §
1604.11(d). Moreover, recognizing that "[p]revention is the best
tool for the elimination of sexual harassment," the EEOC
Guidelines direct an employer to "take all steps necessary to
prevent sexual harassment from occurring such as . . .
expressing strong disapproval, developing appropriate sanctions
. . . ." 29 C.F.R. §1604.11(f). Accord EEOC Policy Guidance,
N-915.035 at 6488.
Thus, Title
VII, as interpreted by the Supreme Court, the courts of appeals,
and the EEOC, establishes an "explicit," "well-defined and
dominant" public policy readily "ascertained by reference to the
laws and legal precedents" forbidding sexual harassment in the
workplace and requiring that an employer take all corrective
action necessary to insure that employees are no longer subject
to sexual harassment in the work environment.
As a
prerequisite to filing a Title VII court action, an aggrieved
person must first file a timely charge of discrimination with
the EEOC setting forth the facts giving rise to the sexual
harassment. In Florida, this charge must be filed within 300
days from the date of the illegal act. A Right-to-Sue letter
from the EEOC is a procedural prerequisite to filing a lawsuit
on the claim of sexual harassment. Litigation must be filed
within 90 days of receipt of the Right-to-Sue Letter; otherwise,
the Title VII case may be time-barred and therefore lost
forever. With the Right-to-Sue Letter in hand, the employee may
then commence a lawsuit seeking damages in either state or
federal court.
II. FLORIDA LAW
"There can be
no doubt at this point in time that both the state of Florida
and the federal government have committed themselves strongly to
outlawing and eliminating sexual discrimination in the
workplace, including the related evil of sexual harassment."
Florida Supreme Court in Byrd v. Richardson? Greenshields
Securities, Inc., 552 So.2d 1099 (1989).
The Florida Legislature enacted the Florida Civil Rights Act of
1992 which took effect on October 1, 1992. This new law provides
for a trial by jury and permits a court to award compensatory
damages, i.e., pain and suffering, mental anguish, etc. and
punitive damages not to exceed $100,000.00. In order to take
advantage of the new law, the party must initially file a charge
of discrimination with the Florida Commission on Human Relations
("FCHR") within 365 days of the last act of sexual harassment.
After conducting its investigation, if the FCHR determines that
there is reasonable cause to believe that discrimination exists,
the employee may bring a civil action for damages against the
wrongdoer and/or employer. A claim under Title VII of the Civil
Rights Act of 1964, as amended, may be combined in the same
lawsuit with an action under the Florida Civil Rights Act of
1992.
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