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Proving Workplace Harassment

Is it getting easier to prove workplace harassment? A recent article from Bloomberg BNA suggests that “workplace harassment claims based on a single incident between employees appear to be gaining traction with U.S. courts.” A number of recent cases have made their way to federal appeals courts, and the outcomes of those cases largely have favored the plaintiffs. While the 11th Circuit—the federal circuit in which Florida cases are appealed—has not recently decided such a case, a case from the 4th Circuit may be instructive. In Boyer-Liberto v. Fontainebleau Corp., the court concluded that “an employee subjected to one offensive remark or act may recover for unlawful harassment under federal law if the comment or behavior is ‘extremely serious’ or ‘serious enough.’”

Could Florida employees be held to a similarly plaintiff-friendly standard?

Single-Incident Workplace Harassment Claims

If more courts are willing to recognize single-incident harassment claims as valid incidents of workplace harassment such that employees can recover damages, then it could be easier for plaintiffs to win claims based on isolated incidents. To better understand the difficulty of proving workplace harassment, we should take a closer look at some of the language of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 (ADEA). According to these laws, cited by the Equal Employment Opportunity Commission (EEOC), workplace harassment is defined as: “unwelcome conduct that is based on race, color, religion, sex, national origin, age, disability, or genetic information.”

Harassment becomes illegal when:

  • “Enduring the offensive conduct becomes a condition of the worker’s continued employment”; or

  • “The conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.”

Generally speaking, single-incident workplace harassment claims have been difficult to prove or have been found to be incidents that do not rise to the level of conduct described above. However, as the Bloomberg BNA article points out, the EEOC has underscored for quite awhile now that harassment can be actionable, even if it occurred only once, if it is “unusually severe.” In short, as the article notes, there simply is not a bright-line rule for courts to follow when it comes to single-incident harassment claims, yet the recent 4th Circuit ruling and similarly decided cases intimate that, in situations where the harassment is particularly serious, a plaintiff may be likely to win her case.

Ambiguous Standards for Workplace Harassment

Just because recent courts have decided in favor of plaintiffs in single-incident workplace harassment claims does not mean that the future paths for plaintiffs will be easy. Indeed, as the article notes, the standards tend to differ when there is racial harassment versus sexual harassment. Language itself may constitute racial harassment, yet “courts historically have required evidence of a physical assault or touching” in sexual harassment claims, according to the article.

Moreover, a recent hostile workplace claim decided by the 11th Circuit, Adams v. Austal, made clear that employees cannot introduce evidence of harassment of which they are not personally aware in order to prove harassment. Yet the recent cases that have found in favor of employees in single-incident workplace harassment claims do, indeed, offer hope for future plaintiffs.

If you have questions about filing a harassment claim, an experienced Florida labor lawyer can help. Contact Scott • Wagner and Associates to learn more about our services.

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Florida 561-653-0008 California 213-377-5200
* Cathleen Scott is licensed to practice in Florida only.

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