Term Paper on "Employment Law"

Term Paper 4 pages (1417 words) Sources: 4

[EXCERPT] . . . .

Legal Memorandum

Will Jane prevail in a sexual harassment lawsuit against ABC company based on the actions of her supervisor, Matthew?

Short Legal Answer: Jane will likely not prevail in her lawsuit against ABC company, yet. Matthew, as her supervisor, was an agent of the employer who created a hostile work environment for Jane, however, given the facts, ABC still has an opportunity to take appropriate prompt measures to remedy the situation.

Research in Support of Answer: Jane, an employee of ABC, recently received a poor performance evaluation from her supervisor Matthew. She has reported to Human Resources that during the performance interview, Matthew made comments about her tight sweater and her short skirt. He implied that he would change her evaluation if she would spend the week end with him in Palm Springs. He pointed out to her that the positive evaluation would lead to a raise in her pay and possible promotion.

The United States Supreme Court, in Faragher, v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998), held that sexual harassment in the work place was prohibited by Title VII and that employers can be held vicariously liable for the actions of its employees if they failed to exercise reasonable care to prevent harassing behavior. Id. At 775,2277. In Faragher, a lifeguard employed by the city of Boca Raton, FL, alleged that her "supervisors had created a 'sexually hostile atmosphere' at work by repeatedly subjecting Faragher and other female lifeguards to 'uninvited and offensive touching,' by making lewd remarks, and by speaking of women in offensive terms." Id. The Court also found that the city "failed entirely to disseminate its policy against sexual harassment among beach employees, its officials made no attempt to keep track of conduct of supervisors in question, and city's sexual harassment policy did not include any assurance that harassing supervisors could be bypassed in registering complaints." Id. At 778,2279.

This case as applied to Jane and ABC, could be helpful towards both sides. While Matthew's conduct clearly created a sexually hostile atmosphere, there is no indication that ABC failed to exercise reasonable care. In fact, the facts indicate that the matter occurred fairly recently and the human resources reported the matter promptly to the CEO. Assuming these facts are true, ABC still has an opportunity to take appropriate measures to remedy the situation. However, these facts (the timing and the policy of ABC and whether it was followed etc.…) need to be thoroughly and accurately developed by the company.

A recent Florida ruling in Speedway Superamerica, LLC, v. Dupont, 933 So.2d 75 (Fla. 5th DCA 2006) set out the elements for establishing a hostile work environment in a sexual harassment case under Florida Civil Rights Act (Fla. Stat. 760). In Dupont, a female convenience store was repeatedly harassed by a male co-worker. The behavior was reported to an assistant manager and to the manager, who responded by switching the female employee's schedule to the "grave yard" shift so that she and the male co-worker would not have contact with each other.

In Dupont, the court held that the plaintiff must prove: (1) that he or she belongs to a protected group, (2) that the employee was subjected to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature, (3) that the harassment was based on the sex of the employee, (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment, and (5) a basis for holding the employer liable. Id. At 80.

Regarding the elements set out in the ruling, the Act specifically prohibits discrimination on the basis of sex (Fla. Stat. 760.10) and therefore, women are a protected group. The remainder of the elements are factual. Jane will likely be able to prove through her testimony that Matthew's advances were unwelcome. Unless evidence surfaces that Matthew has made similar advances to men, it will be held that the harassment was based on the gender of the employee. Id. At 86.

The Dupont court also held that "the required standard is to establish that the conduct/harassment was so severe or pervasive, that it adversely affected the… READ MORE

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