Florida’s Fourth District Court of Appeal recently decided two questions of first impression under Florida law: (1) whether a one-event sexual advance at a private, non-work sponsored party may support sexual harassment and retaliation claims, and (2) whether rejecting a supervisor’s sexual advance is protected “opposition.” The court answered both questions “yes.”
A dispatcher working for the village police department filed suit against the Village of Tequesta, claiming she rejected sexual advances by the Chief of Police at a private party celebrating the promotion of a coworker. As a result, she experienced adverse employment actions and retaliation in violation of the Florida Civil Rights Act (“FCRA”) and Title VII. Specifically, she alleged the chief refused to approve a training course that she needed to take to receive a “satisfactory” rating on her performance evaluations; she was declined an open position that she applied for despite being told that she was the most qualified candidate for the position; and she was declined a second open position even though she had more years of experience than the person selected for the job.
The trial court resolved the sexual harassment count in the Village’s favor at summary judgment. The retaliation count proceeded to trial, resulting in a verdict against the Village. The Village then moved for directed verdict, arguing the isolated nature of the incident and the absence of any connection between the private party and the Village did not amount to protected “opposition” under the FCRA; consequently, the employee could not establish a retaliation claim. The court denied the motion, and the Village appealed.
Addressing the first question, the court held the language of the FCRA and Title VII is broad enough to encompass one-event physical sexual contact as an unlawful employment practice when the event is severe. Relying on United States Supreme Court precedent addressing hostile work environments, the court explained that “if a one-event sexual advance can support a sexual harassment claim under Title VII because it is severe, the same would hold true in the context of a retaliation claim.” In addition, the court held the location or event at which the sexual advance takes place makes no difference. The relevant question is not whether the conduct occurred at work or a work-sponsored event. Instead, the relevant question is whether the adverse employment action resulted from a refusal to submit to a supervisor’s sexual demands. Context such as the location or event at which the conduct occurs impacts only the jury’s determination concerning the severity of the sexual harassment.
As for the second question, the court held saying no to a sexual advance is protected oppositional activity. The court reasoned that Title VII’s opposition clause confers protection to even the most basic form of activity, i.e., resisting or confronting unlawful harassment. Therefore, an employee need not complain to a particular official designated by the employer to trigger Title VII’s protections from retaliation; rather, opposition to the harassment, even if only directed at the harasser, will suffice to constitute protected activity covered by Title VII. Its holding widened an existing split between the Sixth and Eighth Circuits.
In the wake of the Village of Tequesta decision, employers should review their anti-harassment training programs to ensure that they advise supervisors that sexual advances toward coworkers occurring at off-site, non-work-sponsored events can give rise to sexual harassment and retaliation claims under the FCRA and Title VII. Employers should also remind supervisors that it is never okay to base employment decisions on an employee’s objections to sexual harassment or other discriminatory behavior.
