Flirtation and Brief Touchings are Not Sexual Harassment -- Or are They?

illustration by Mark Normand -- http://presentationslides.blogspot.comIs the Eleventh Circuit Court of Appeals going to reverse its decision in the controversial case of Corbitt v. Home Depot?

Last August I reported on this decision by the Eleventh Circuit Court of Appeals (which covers Florida, Georgia and Alabama), in which the court analyzed the claims of two former Home Depot employees who claimed their male supervisor repeatedly subjected them to unwanted flirtatious compliments and sexual touchings.  The plaintiffs alleged that the supervisor made such comments as "your hair is beautiful," and "I like your green eyes" and touched the plaintiffs in a sexual way on several occasions.  He even allegedly told one of the employees, “I know you’re not gay, but you’ve probably thought about it, I could show you how, I know you’ll like it."  The court held that under the totality of the circumstances, the supervisor's conduct was not sufficiently severe or pervasive to constitute sexual harassment under Title VII. 

In December the court issued a revised opinion that reached the same result on the plaintiffs' sexual harassment claims. 

Today, however, the court vacated its December opinion and announced that the case will be reheard en banc, i.e. by the whole court rather than a three-judge panel.  This is a significant development that may portend a reversal of the holding in Corbitt and a change in the law on sexual harassment in the Eleventh Circuit. Stay tuned.


Flirtation and Brief Touchings Are Not Sexual Harassment, Eleventh Circuit Rules

When does flirtation and touching by a supervisor cross the line into sexual harassment in violation of Title VII? The Eleventh Circuit Court of Appeals (which covers Florida, Georgia and Alabama) recently addressed that issue in Corbitt v. Home Depot U.S.A., Inc. (11th Cir., July 10, 2009). 

First, some background. It is well-established in the Eleventh Circuit that to sustain a claim of sexual harassment, a plaintiff must prove that the objectionable behavior was sufficiently “severe or pervasive” to alter the conditions of employment and create an abusive working environment. 

But what is the meaning of “severe or pervasive”? Last year I reported on Criswell v Intellirisk Management Corp., Case No. 07-15280 (11th Cir., July 15, 2008), an Eleventh Circuit decision which held that an employee who was exposed to pornography involving a co-worker on three separate occasions stated a claim for a sexually hostile work environment under Title VII. The court held that the pictures to which Criswell was exposed “were severe enough to have altered the terms and conditions of Criswell’s employment.” But the pictures were filed under seal, and the court’s opinion does not describe them, so the decision offers little guidance.

The Corbitt decision is far more instructive. Dave Corbitt and Alex Raya were store managers at two Home Depot stores who alleged that they were sexually harassed by a gay regional human resources manager, Lenny Cavaluzzi. The opinion describes Corbitt’s and Raya’s allegations of sexual harassment in detail. They included allegations that Cavaluzzi called Corbit on numerous occasions and told him that he

“could not stop thinking about” Corbitt; that Cavaluzzi knew Corbitt was not gay, but Cavaluzzi could show Corbitt how, and he would “like it;” that Cavaluzzi liked Corbitt’s “baby face;” and that Corbitt was “small and cute.” .. [that]  he liked how small Corbitt was and the way he dressed, that he liked Corbitt’s dark tan, and asked if Corbitt “wore boxers or briefs or nothing.” He asked if Corbitt colored his hair and remarked that it must be Corbitt’s “natural color down there too.” He asked whether Corbitt shaved his full body, stating that it looked as though Corbitt shaved his arms. He repeatedly asked Corbitt if he “wasn’t bored with the same woman,” referring to Corbitt’s wife, asked if Corbitt and his wife “swing,” and told Corbitt to visit specified gay websites, saying Corbitt “should look at them” ….

[Opinion at 6].

Cavaluzzi allegedly engaged in similar behavior with Raya:

Cavaluzzi called Raya several times a week, asking such things as what Raya was wearing and if he was wearing the pants that Cavaluzzi liked. Cavaluzzi stated that Raya “always dressed so nice” and “was cute.” Cavaluzzi would tell Raya that he was going to be in town and asked when Raya was working and getting off work. He asked whether Raya was happily married, remarked that Raya’s hair was beautiful, and stated that he liked Raya’s green eyes. He told Raya, “I like the rough look,” and “I like your temper.” He also told Raya, “you’re the Italian heifer that I like.” He repeatedly asked Raya to meet him for drinks.

[Id. at 6-7].

Cavaluzzi also allegedly touched Corbitt and Raya on numerous occasions:

Cavaluzzi walked into the room and massaged their necks and shoulders, made comments about their hair, played with their hair, and hugged Corbitt and Raya in front of the store managers and human resources managers of the district. …   That evening, Cavaluzzi called Corbitt at home and asked Corbitt to bring assistant manager files to Cavaluzzi at the Pensacola Home Depot. When Corbitt pulled into the parking lot, Cavaluzzi reached into Corbitt’s car and began massaging Corbitt’s neck and shoulders. Cavaluzzi invited Corbitt to join him at his hotel for a couple of drinks. Corbitt refused.

* * *

Around the same time, Raya was in the training room at the Daphne, Alabama store seated at a table with another employee, when Cavaluzzi came into the room. Cavaluzzi sat down next to Raya, put his arm on Raya’s shoulder “like [Cavaluzzi] was [Raya’s] best friend in the world” and put his hand on Raya’s thigh under the table. Raya moved his chair away from Cavaluzzi and stood up. Cavaluzzi then stood for a few seconds and stated, “I just wanted to let you know I’m here” and walked out of the room.

Within a month after this incident, Raya attended a training meeting at the Pensacola Hampton Inn. In front of nine or ten store managers, Cavaluzzi came up behind Raya and began running his fingers through Raya’s hair.

In June, Home Depot held a grand opening at the new Pensacola store, at which Raya made a presentation in front of approximately 200 contractors. After completing his speech, as Raya walked down from the podium …Cavaluzzi then gave Raya a hug and massaged Raya’s back. Raya testified that Cavaluzzi pressed his whole body against Raya, such that Cavaluzzi’s body was touching Raya’s “privates” during the hug.

In August, Corbitt was working alone in the training room of the Montlimar store when Cavaluzzi “snuck up” behind him, put one of his hands on Corbitt’s shoulder, and rubbed Corbitt’s stomach with the other. Corbitt pulled away.

At an August meeting, Cavaluzzi massaged Raya’s neck and shoulders while commenting that Raya was in good shape and felt muscular and trim. He complimented Raya’s physical build and asked Raya if he worked out. Raya walked out. …

At a November meeting, when Corbitt entered the room, he stuck out his hand to shake hands with Cavaluzzi, but Cavaluzzi pushed Corbitt’s hand to the side and instead gave Corbitt a hug. Before Corbitt could pull away, Cavaluzzi started rubbing Corbitt’s back, neck, head, and shoulders. When Corbitt pulled away from Cavaluzzi, Cavaluzzi asked, “How are you doing?” Corbitt responded that he was cold, and Cavaluzzi said, “Maybe we should cuddle later.”

[Id. at 7-9].

Based on these allegations, the district court held that Corbitt and Raya could not demonstrate that Cavaluzzi’s behavior was sufficiently severe or pervasive to alter the terms and conditions of employment. Therefore the court granted summary judgment to Home Depot. The plaintiffs appealed from this ruling.

The Eleventh Circuit affirmed the district court’s ruling, drawing a distinction between conduct that may be inappropriate for the workplace, and conduct that is actionable under Title VII. Citing precedent from the United States Supreme Court and the Eleventh Circuit, the court noted that only statements and conduct of a sexual or gender-related nature can be included in the analysis. “Innocuous statements or conduct, or boorish ones that do not relate to the sex of the actor or of the offended party . . . are not counted.” Similarly, “[f]lirtation is part of ordinary socializing in the workplace and should not be mistaken for discriminatory conditions of employment.” Thus, Cavaluzzi’s telling Raya that he liked how Raya dressed, that he liked his pants, that his hair was beautiful, and that he liked his green eyes “is not actionable conduct under Title VII.” Nor were Cavaluzzi’s statements to Corbitt that he liked the way Corbitt dressed or that he was cute; “those are simply flirtatious compliments.” Putting an arm around an employee as a gesture of friendship is also not sexual, and therefore not actionable under Title VII.  [Id. at 26-27]. 

The court recognized that Cavaluzzi did engage in some sexual conduct toward the plaintiffs. The court counted five touchings and one comment that were sexual in nature toward Raya, and four touchings and four comments that were sexual in nature toward Corbitt. But the court held that such conduct was neither severe nor pervasive. Plaintiffs admitted that most of the touchings were “quite brief.” And, according to the court, the fact that they were same-sex touchings did not make them any more severe. The court recognized that some of Cavaluzzi’s comments to Corbitt were “relatively severe” (e.g. “I know you’re not gay, but you’ve probably thought about it, I could show you how, I know you’ll like it”).  But, the court noted, “we examine conduct in context, not as isolated acts, and determine under the totality of the circumstances whether the harassing conduct was sufficiently severe or pervasive. … The fact that only several of the comments were sexual in nature and happened during brief phone calls leads us to agree with the district court that the conduct was not sufficiently severe or pervasive.” [Id. at 31].

For employment practitioners in the Eleventh Circuit, the Corbitt decision provides invaluable guidance in analyzing claims of sexual harassment. Corbitt should also hearten employers who may be afraid that even mild flirtation in the workplace violates Title VII. It does not. Only “severe or pervasive” conduct will give rise to an actionable claim for sexual harassment. Corbitt helps us understand what those words mean.

Bystander Employee Can Claim Sexual Harassment

Sexually offensive language need not be targeted at the plaintiff in order to support a claim of sexual harassment, according to a recent decision by the Fifth District Court of Appeals in Blizzard v. Appliance Direct, Inc. (Fla. 5th DCA, August 7, 2009). 

The plaintiff in the case, Neina Blizzard, a former sales associate at an appliance store, alleged that the manager of the store, Jeff Rock, constantly talked about his sexual prowess, made lewd comments about female workers and customers, and would whinny like a horse when an attractive woman would come into the store. However, the comments were not directed at Blizzard, nor did he ever touch her or make any sexual advances toward her. In fact, Blizzard was under the impression that Rock did not like her at all. She did claim, however, that Rock would give preference to other women who were receptive to his management style.  Blizzard either quit or was fired (there was a dispute on this point), and subsequently sued her employer, claiming sexual harrassment and retaliation. 

A plaintiff in a sexual harassment case must prove that the harassment was "based on" her sex. The "knotty question" raised by Blizzard's harassment claim, according to the Fifth DCA, was whether harassment in the form of offensive language was “based on” Blizzard's sex, even when she was not the target of the language, and even though other employees were equally exposed to it.  In answering that question in the affirmative, the court cited the decision by the United States Court of Appeals for the Fourth Circuit in Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001).  In that case, the court held that racist comments by a white manager, including comments about the manager's own African-American wife, could support an African-American plaintiff's claim of racial harassment, even though the comments were not directed at him. 

(Interestingly, in a footnote, the Fifth DCA noted that the Eleventh Circuit Court of Appeals (which covers Florida, Georgia and Alabama) reached a similar conclusion in Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139, 1145 (11th Cir. 2008), reh'g en banc granted, vacated by 569 F.3d 1290 (11th Cir. 2009).  In April of this year, however, the Eleventh Circuit vacated its opinion in order to consider the case en banc (i.e., by the whole court rather than a 3-member panel).  Will the Eleventh Circuit reverse itself on this point?  That seems unlikely.  As noted by the Fourth Circuit in Spriggs, "whatever the contours of one's environment, they surely may exceed the individual dynamic between the complainant and his supervisor."  In fact, Spriggs cites a 1982 Eleventh Circuit decision, Walker v. Ford Motor Co., 684 F.2d 1355, 1359 n.2 (11th Cir. 1982), for this proposition. In Walker, the court held that "[t]he fact that many of the epithets were not directed at [the plaintiff] is not determinative. The offensive language often was used in [his] presence.")

For Florida employers, the lesson of the Blizzard case is clear:  Do not condone or tolerate sexually explict langugage or behavior, especially by supervisors, in the workplace.  Whether the targets of such comments and behavior are offended may be irrelevant.  "Bystander" employees who take offense may have viable claims against their employer.

Orlando Federal Court Slashes Punitive Damages Award to Plaintiff

A federal judge in Orlando has reduced a $5.378 million jury award to $610,000 in a case of sexual harassment allegedly committed by a wealthy timeshare developer.  The plaintiff, a spa employee at one of the developer's properties, brought suit after allegedly rejecting the developer's sexual advances, including a proposal for a ménage à trois with the developer's wife. 

The plaintiff's claims included sexual harassment under Title VII and the Florida Civil Rights Act, and battery.  The jury found that the statutory claims were untimely, but found for the plaintiff on her battery claim.  The court described the trial as "a classic 'he said, she said' case where the jury was compelled to choose which side it found credible."  The jury awarded the plaintiff $102,233.14 in compensatory damages, and $5,276,640.00 in punitive damages. 

In a lengthy post-trial order, Judge John Antoon II of the U.S. District Court for the Middle District of Florida upheld the compensatory damages award.  "Considering the statutory and judicially-noted criteria," the Court wrote, "the Court is unable to conclude that the award of just over $100,000 in this case is outside the “reasonable range,” though it is certainly at the upper end of that range." Courts have recognized that review of “‘awards of compensatory damages for intangible, emotional harms is deferential to the fact finder because the harm is subjective and evaluating it depends considerably on the demeanor of the witnesses.’”

With regard to the punitive damages award, Judge Antoon noted that "Florida courts have held that the commission of intentional battery 'supplies the requisite proof . . . justifying a punitive damages award.'"  However, "[t]he Florida legislature has placed caps on punitive damages awards, and the instant award is subject to those caps. Generally, '[a]n award of punitive damages may not exceed the greater of . . . [t]hree times the amount of compensatory damages . . . or . . . [t]he sum of $500,000.” § 768.73(1)(a), Fla. Stat."

The court went on to note that "[t]he only potentially applicable exception to this limitation is '[w]here the fact finder determines that at the time of injury the defendant had a specific intent to harm the claimant and determines that the defendant’s conduct did in fact harm the claimant, there shall be no cap on punitive damages.'" In what appears to have been an error by the plaintiff's attorneys, Judge Antoon noted that "the proposed verdict form that Plaintiff proposed before trial did not ask the jury to make these findings. Plaintiff cannot now claim entitlement to uncapped punitive
damages without these findings in the face of a plainly written Florida statute that requires
specific determinations by the fact finder in order for the caps not to apply."

The case is Myers v. Central Fla. Invs. Inc., M.D. Fla., No. 6:04-CV-1542-Orl-28DAB (M.D. Fla.).  Defendants have filed an appeal with the Eleventh Circuit.

Three Incidents of Exposure to Porn Can Violate Title VII, Says Eleventh Circuit

An employee who was exposed to pornography involving a co-worker on three separate occasions stated a claim for a sexually hostile work environment under Title VII, according to the Eleventh Circuit Court of Appeals in an "unpublished" opinion released last week, Criswell. v Intellirisk Management Corp., Case No. 07-15280 (11th Cir., July 15, 2008).  The court held that the pictures to which Criswell was exposed "were severe enough to have altered the terms and conditions of Criswell’s employment." 

In the Eleventh Circuit, although unpublished opinions are not considered binding precedent, they may be cited as persuasive authority. 11th Cir. R. 36-2.  So, putting salacious interests aside, it would be instructive to learn some details about the photographs.  What was so shocking about them that they could be deemed to have altered the terms and conditions of Criswell's employment?  Alas, we will never know because the pictures were filed under seal, and the court's opinion does not describe them.

One thing that can be said for sure is that Florida employers generally should not tolerate any pornography in the workplace.  Even a few photographs may raise the specter of Title VII liability, as the Criswell case illustrates.  And no, private sector employees do not have First Amendment rights from censorship by their employers. 

Florida Workers Compensation Law Bars Sexual Assault Lawsuit

The workers' compensation exclusive remedy doctrine bars common law causes of action for negligent hiring, retention, and supervision and for assault, battery, and rape arising out of the alleged sexual assault of a minor employee by a supervisor, according to Florida's Second District Court of Appeals in a recent decision, John Doe and Jane Doe v. Footstar Corporation

Joel Cooper and the plaintiffs' daughter worked at the same Footstar retail outlet, Cooper as a store manager and the daughter as a sales clerk. The plaintiffs sued Cooper and Footstar Corporation, claiming that he had assaulted and sexually battered their daughter in the course and scope of his employment with Footstar, and that Footstar had negligently hired, retained, supervised, and trained Cooper. The trial court entered a final judgment on the pleadings in favor of Footstar on the basis that the workers' compensation law barred the plaintiffs' claims.

The Second District Court of Appeals affirmed the dismissal, holding that "[t]here is no
exception to the exclusive remedy of the Florida workers' compensation law and this Court cannot create one under the facts of this case, as reprehensible as the conduct alleged by Plaintiffs appears to have been and as harsh as this result seems to be." 

The Footstar decision does not mean that sexual harassment claims are barred by the workers' compensation law.  As the court in Footstar noted, the Florida Supreme Court ruled in Byrd v. Richardson Greenshield Securities (1989) that sexual harassment claims, and common law claims arising from sexual harassment, are not barred. 

So why were the common law claims in Footstar barred? That's not entirely clear from the opinion, but my guess is that the claims were not related to sexual harassment.  In other words, the relationship between Cooper and the employee was most likely consensual, and a consensual relationship (even one involving a minor) cannot form the basis for a sexual harassment claim.

Female Prison Workers in Florida Awarded $630,000 for Inmates' Sexual Harassment

I’ve long advised my clients that they can be held liable for sexual harassment of their employees by third parties such as customers. If the employer knows or should know of the harassment, and fails to take prompt immediate action, the employer can be held liable, just as if the customer was a co-worker of the harassed employee. A variation of that principle -- involving prisoners rather than customers -- was illustrated recently in a case in the Southern District of Florida, Beckford v. Florida (S.D. Fla., No. 2:06-CV-14324-JEM).  The plaintiffs were 14 female prison employees who alleged that the state’s Department of corrections allowed a sexually hostile work environment to flourish by failing to prevent their exposure to lewd behavior by male inmates. According to the Daily Labor Report, the female employees were required by their jobs to enter the inmates’ dormitories, where the inmates were often unclothed or partially dressed, and would masturbate at the women – a behavior known as “gunning.” The Department claimed it took appropriate disciplinary action against the offending inmates. The all-male jury disagreed.