A Florida appellate court has held that an employer can be liable when a supervisor retaliates against an employee who rejected his sexual overtures at a non-work-sponsored party. The employee had never complained about the supervisor’s conduct. In Village of Tequesta v. Tara Luscavich, 2018 Fla. App. LEXIS 3338 (Fla. 4th DCA March 7, 2018), Florida’s Fourth District Court of Appeal addressed several issues of first impression in Florida under the Florida Civil Rights Act (“FCRA”), section 760.10(7).
I. Brief Background
Ms. Luscavich, a police dispatcher in the Village of Tequesta’s (the “Village”) police department, brought a retaliation claim against the Village pursuant to FCRA section 760.10(7), alleging that she suffered adverse employment actions after rejecting sexual advances by the Village’s soon to be Chief of Police at a private party primarily attended by fellow employees of the Village’s police department, and held at the home of a Village police officer to celebrate that officer’s promotion.
a. Does a one-event sexual advance at a private party constitute an unlawful employment practice?
The appellate court began its analysis by separating this question into two inquiries: i) whether a one-event sexual advance constitutes an unlawful employment practice; and ii) whether sexual advances at a private, non-work sponsored party constitute an unlawful employment practice.
Looking first to federal case law interpreting sexual harassment claims under Title VII, the Court stated that the language of both Title VII and the FCRA is broad enough to encompass one-event physical sexual contact as an unlawful employment practice if it is “severe or pervasive.” Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 753-54, 118 S.Ct. 2257, 2265, 141 L. Ed. 2d 633 (1998). Seeing no reason to distinguish between a sexual harassment claim and a retaliation claim, the appellate court held that “a one-event sexual conduct involving sexual organs can qualify as a prima facie showing to support a retaliation claim if it is severe enough,” and that it was up to the jury to decide whether the conduct fell within the EEOC guidelines and was severe enough to impose liability.
Turning to the second inquiry, the appellate court held that the location or nature of the event where the sexual harassment took place was irrelevant “because such characteristics are unimportant, for purposes of directed verdict, where the issue is whether a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands.” Instead, the appellate court concluded that these factors are relevant to the severity determination to be made by the jury.
b. Is a rejection of sexual advances a protected activity under the FCRA?
The Court also held, after reviewing conflicting Federal law and relying heavily on Sixth Circuit precedent, that a person who rejects a supervisor’s sexual advances has engaged in statutorily protected “opposition.” Compare Tate v. Exec. Mgmt. Servs., Inc., 546 F.3d 528, 532 (7th Cir. 2008) with Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000); E.E.O.C. v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015).
Moreover, the appellate court rejected the Village’s argument that, because Ms. Luscavich had not complained to anyone, she had failed to provide the Village with required notice of the sexual harassment. The appellate court reasoned that this argument might be relevant if the Chief’s conduct had the purpose or effect of unreasonably interfering with work performance or creating an intimidating, hostile, or offensive working environment, but was not relevant to a claim of retaliation by a supervisor.
While the appellate court affirmed the denial of the Village’s motion for directed verdict, it ultimately remanded the case for a new trial because it found that the trial court erred in instructing the jury on causation due to a recent change in the causation standard for Title VII retaliation claims in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013).
The Bottom Line
The key points to take away from this important decision are that under the FCRA:
- A one-event sexual advance may constitute an unlawful employment practice if it is found to be severe by a jury.
- The location and nature of the environment where the sexual harassment occurs is not determinative of whether a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands.
- A rejection of sexual advances is a protected activity, and the employee need not complain to others about the improper conduct if her supervisor is guilty of retaliation.