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Is 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.

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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. (11^th 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.

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Florida employers that that are considering offering severance agreements and releases in connection with a reduction in force may be interested in the following client alert, written by EBG attorneys Frank C. Morris, Jr. and Brian W. Steinbach.  It discusses the EEOC's memorandum Understanding Waivers of Discrimination Claims in Employee Severance Agreements.  The EEOC's memorandum does not make new law.  Still, the Q&A format makes for easy reading, and serves as a good refresher for employers and employees alike on the law governing the release of claims under the ADEA, Title VII, the ADA, and the EPA.

As has been reported routinely for many months, the extraordinary economic downturn has caused an unfortunate and still on-going stream of shutdowns, furloughs, and reductions-in-force ("RIFs"). To minimize potential legal exposure, from RIFs, many employers offer exiting employees severance compensation or benefits in exchange for waivers releasing the employers from any potential discrimination claims under state, local, and federal employment laws, including the Age Discrimination in Employment Act ("ADEA"), Title VII of the Civil Rights Act, the Americans with Disabilities Act ("ADA"), and the Equal Pay Act ("EPA"), as well as common law claims. Recognizing this, the Equal Employment Opportunity Commission ("EEOC") recently published guidance, titled Understanding Waivers of Discrimination Claims in Employee Severance Agreements, which attempts to summarize, in plain language, the statutory requirements for valid individual and group waivers under the ADEA, Title VII, the ADA, and the EPA. Although organized in a Q&A format targeted to employees, the guidance is also a valuable compliance tool for employers and their Human Resource departments. Below are highlights from this new guidance.

The guidance first discusses generally the nature of severance agreements with a release of claims and the general elements necessary for valid and enforceable waivers, particularly the requirement that a wavier be made knowingly and voluntarily. It then focuses on the unique requirements for release of ADEA claims under the Older Workers Benefits Protection Act ("OWBPA"). It also emphasizes that a waiver cannot prevent an employee from filing a discrimination charge with the EEOC or from testifying or participating in an agency investigation. The guidance explains that if an employee files an EEOC charge after signing a waiver, the employer cannot require the employee to return the severance pay he or she received. Similarly, after signing a waiver, an employee is not required to return severance pay before filing an age discrimination lawsuit (the courts are split on this issue under Title VII, the ADA or the EPA). However, if an employee successfully challenges a waiver, the court should reduce any monetary award by the amount of consideration the employee received for signing the waiver.

The guidance next addresses in detail the specific minimum requirements established by the OWBPA for a wavier of ADEA age discrimination claims to be considered "knowingly and voluntarily" According to these factors, the waiver must (1) be written in plain language easily understood by the employee eligible for termination; (2) specifically refer to rights or claims arising under the ADEA; (3) advise the employee, in writing, to consult an attorney before accepting the agreement; (4) provide the employee with at least 21 days (45 days for a program offered to a group or class of employees) to consider the offer; (5) provide the employee seven days to revoke his or her signature; (6) provide additional consideration beyond what the employee is already entitled; and (7) not waive future rights and claims. Furthermore, the guidance takes the position that employers "cannot attempt to ‘cure' a defective waiver by issuing a subsequent letter containing OWBPA-required information that was omitted from the original agreement." Material changes in the offer restart the 21-day or 45-day period for consideration.

The guidance then highlights the additional information employers must provide employees for "programs" offered in connection with group layoffs. Specifically, employees are entitled to information on: (1) the decisional units (portion of the company from which the employer selected the employees to terminate); (2) the eligibility factors for the program; (3) the time limits applicable to the program; and (4) the job titles and ages of all the employees who are eligible or were selected for the program and the ages of all individuals in the same job classification or organization unit who are not eligible or were not selected for the program. The EEOC describes this information as needed to allow employees to determine, before signing the waiver, whether age discrimination motivated the termination selections.

Notably, although both the EEOC's regulations and a sample waiver and release attached to the guidance indicate that the requirement to disclose "eligibility factors" runs to the general determination of who is and is not eligible for a particular program, in the guidance the EEOC notes without further comment that some courts have interpreted this to mean the actual criteria, such as job performance, experience or seniority, relied upon in making the final termination decision. Compare, e.g., Pagliolo v. Guidant Corp., 483 F. Supp. 2d 847 (D. Minn. 2007) (holding a release violated OWBPA by, among other things, failing to identify the general criteria by which employees were selected for termination) with Rupert v. PPG Industries, Inc., No. 07cv005, 2009 WL 596014, *49-*57 (W.D. Pa. Feb. 26, 2009) (reviewing decisions and rejecting any requirement to provide the criteria relevant to specific termination decisions, noting, inter alia, the absence of such factor in the EEOC's sample disclosure form). Thus, the EEOC fails to resolve or offer direction on this potentially vexing issue affecting the practical administration of severance programs.

Finally, the guidance includes an employee checklist on what to do when offered a severance agreement. As employees and their attorneys are likely to follow this closely, employers also should review this checklist in preparing and offering a severance agreement.
 

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In a much-anticipated review of a Second Circuit Court of Appeals decision endorsed by Supreme Court nominee Sonia Sotomayor, the Supreme Court has reversed the appellate court's decision, ruling that white firefighters in New Haven, Connecticut, were unfairly denied promotions because of their race.  The case is Ricci v. DiStefano (Supreme Court, June 29, 2009).

The case arose out of New Haven's use of objective examinations to identify those firefighters best qualified for promotion. When the results of examination to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, the City, fearing a lawsuit, threw out the results based on the statistical racial disparity. White and Hispanic firefighters who passed the exams but were denied a chance at promotions sued the City, alleging that discarding the test results discriminated against them based on their race in violation of Title VII of the Civil Rights Act of 1964. The City responded that if they had certified the test results, they could have faced Title VII liability for adopting a  practice having a disparate impact on minority firefighters. The district court granted summary judgment for the defendants, and the Second Circuit Circuit of Appeals affirmed.

The Supreme Court reversed, holding that City’s action in discarding the tests violated Title VII. The court held that under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. The court acknowledged that the racial adverse impact from the test results was significant.  However, a threshold showing of a significant statistical disparity, and nothing more, is insufficient to show that the City would have been liable under Title VII had it certified the test results, because the City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. Based on the record, there was no substantial basis in evidence that the test was deficient in either respect. Fear of litigation alone, the Court held, cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.

The Ricci decision is certain to be a focus of upcoming Senate hearings on Sotomayor's nomination.  For employers, Ricci offers new guidance concerning the circumstances under which an employer can take race-conscious measures to avoid or remedy an unintentional, disparate impact on minority groups.  Under Ricci, the employer must have a "strong basis in evidence" to believe it will be subject to disparate-impact liability if it fails to take the race-conscious action.  This high burden is certain to be the basis for other challenges to employers' affirmative action policies throughout the United States.

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The following is a client alert authored by EBG attorney Barry Guryan on the Supreme Court's recent decision in Gross v. FBL Financial Services, which I reported on last week.   

On June 18, 2009, the Supreme Court of the United States ruled fohe first time that in order to prevail in a disparate treatment case brought under the Age Discrimination in Employment Act (ADEA), the plaintiff must prove that "but for" the alleged discrimination, the employer would not have taken the "adverse employment action." Unlike a Title VII case, the burden of persuasion does not shift to the employer when the employee shows that age was one of the factors in a mixed-motive case.

In a 5-4 decision written by Justice Thomas, the majority held that it would not extend the "mixed motive" analysis applicable to Title VII cases to ADEA cases. In Title VII cases, which prohibit discrimination based on race, sex or national origin, where an employer is motivated by both a permissible factor and an impermissible factor, (i.e. a mixed motive), the Court, historically, has applied the well-known burden-shifting analysis. Thus, if the plaintiff meets his or her initial burden of persuasion by demonstrating that the employer considered an impermissible factor, such as race, in taking an adverse action against the plaintiff, the burden then switches to the employer to prove that it would have taken the same adverse action in any event.  Gross v. FBL Financial Services, Inc., No. 08-441.

The case was brought by Petitioner Jack Gross (Gross), who claimed that his employer, FBL Financial Group, Inc. (FBL), demoted him because of his age. At the time of his demotion he was 54. His duties were transferred to a woman who, at the time, was in her early forties. At trial, Gross presented evidence that age played a role in FBL's decision. The jury returned a verdict for Gross at the trial court level, after the trial judge, over FBL's objection, instructed the jury that it must return a verdict for Gross if he proved, by a preponderance of the evidence, that age was a "motivating factor" when FBL demoted him. The trial court also instructed the jury that it must find for FBL if it found that FBL would have demoted Gross regardless of his age.

On appeal, the majority held that the burden-shifting analysis does not even apply in a mixed-motive case brought under the ADEA. In reaching this conclusion, the majority noted that after the Price Waterhouse decision of 1989, which discussed the proper allocation of the burdens of persuasion in mixed-motive cases brought under Title VII, Congress explicitly amended Title VII, in 1991, by authorizing discrimination claims in which an improper consideration was a "motivating factor" for an adverse employment decision, even though other factors also motivated the adverse action. Since Congress limited its amendment to Title VII claims, the majority refused to apply the language of the amendment to the ADEA.

The Court concluded by interpreting the plain language of the ADEA, which prohibits various types of discrimination in employment "because of" age. The majority interpreted the phrase "because of" to mean that age was "the reason" that the employer decided to act. The majority concluded: "Thus, to establish a disparate treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the ‘but-for' cause of the employer's adverse action." The plaintiff, therefore, retains the burden of persuasion throughout the case.

There were strong dissents written by Justice Stevens with whom Justices Souter, Ginsburg and Breyer joined. They stated that the "but for" standard was rejected in Price Waterhouse and that it should be rejected in cases alleging violations of the ADEA as well, since both statutes use identical language in prohibiting discrimination (i.e., both statutes prohibit adverse employment actions "because of" the impermissible factor). Moreover, there is precedent that Title VII analysis has historically been applied to the ADEA.

One of the most interesting questions that the Gross case raises is whether the Court's holding will extend to other discrimination statutes. Most notably is the Americans With Disabilities Act (ADA), which prohibits discrimination "because of" a disability. Even though the ADA, like the ADEA and Title VII, prohibits discrimination "because of" the protected category, the Supreme Court, if faced with the right facts, could apply the "but for" test to ADA claims, since, like the ADEA, discussed in Gross, Congress did not amend the ADA when it amended Title VII in 1991.

We will continue to follow these developments.
 

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Employment litigation has boomed in the last 15 years. Statutes such as the ADA and the FMLA have created new rights for employees. Decades-old laws such as Title VII (which prohibits many forms of discrimination) and the Fair Labor Standards Act (which sets the minimum wage and regulates overtime pay) remain popular among plaintiffs’ lawyers and their clients. In fact, the number of Title VII charges is on the rise, and the Southern District of Florida leads the nation in FLSA lawsuits. The cost of litigation has increased as well. Employers can spend $50,000 in attorney’s fees defending even a baseless case. Naturally, you may be skittish about criticizing, much less terminating, your poorly performing employees. And you may be reluctant to ask your employees to sign agreements designed to protect your customer lists and other confidential business information.

Don’t be. In today’s ultra-competitive business environment, you cannot afford to retain poor performers. Nor can you afford to let employees take advantage of your hard work and intellectual property. Sure, employees have many legal rights. But as an employer, you too have rights. Here are just a few:

▪ You have the right to demand hard work. The law does not prohibit you from taking action against employees who are lazy or unproductive. Moreover, you can require employees to work overtime, even weekends and holidays, provided that you pay your non-exempt employees the appropriate overtime wages. (Employees who qualify for the professional, executive, administrative and outside sales exemptions are not entitled to overtime pay.) Weed out your lazy employees, and reward your hard workers with overtime pay if necessary.

▪ You have the right to demand high-quality work and appropriate workplace conduct. Sloppy work product, poor customer service, and arguments with co-workers and supervisors are not legally protected workplace behaviors. Put an end to them through a system of progressive discipline.

▪ You have the right to demand loyalty. Employees do not have a right to solicit business for their own benefit or to set up a competing business while you employ them. You can and should terminate employees who put their own interests ahead of your business.

▪ You have the right to be wrong. Suppose you have reason to believe that an employee is stealing or otherwise not acting in the company’s best interests, but you don’t have conclusive proof. Fortunately the law does not require an employer to act like a prosecutor and obtain proof beyond a reasonable doubt.  So long as you act in good faith and without discrimination, you can lawfully act on your best available information, even if it turns out to be wrong.

▪ You have the right to protect your trade secrets and confidential business information. The Florida Uniform Trade Secrets Act protects against an employee’s misappropriation of trade secrets. But courts often construe the term “trade secrets” narrowly. You should require employees who have access to customer lists, strategic plans, pricing information, financial data, and other confidential business information to sign confidentiality agreements that restrict their use of such information during their employment, and after. Florida law (section 542.335, Florida Statutes) also allows you to require employees to sign agreements not to compete with your business or to solicit your customers for a period of time after their employment ends, provided the agreements are supported by legitimate business interests and are reasonable in time, geographic scope and line of business. 

You may already know what the law prohibits you from doing as an employer. But knowing what the law permits you to do – and doing it – will improve the productivity of your workforce and give you an advantage over your competition. 

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 The U.S. Supreme Court ruled yesterday that Title VII's anti-retaliation provision’s protection extends to an employee who answers questions during an employer’s internal investigation.

 The case, Crawford v. Metropolitan Gov't of Nashville (January 26, 2009) involved an employee (Crawford) who, in the course of an internal investigation into rumors of sexual harassment by the school district's employee relations director (Hughes), reported that Hughes had sexually harassed her. The employer took no action against Hughes, but soon fired Crawford for alleged embezzlement.

Crawford sued, claiming that the employer retaliated againt for her report of Hughes’s behavior in violation of Title VII's anti-retaliation provision (42 U. S. C. §2000e–3(a)), which makes it unlawful “for an employer to discriminate against any . . . employe[e]” who (1) “has opposed any practice made an unlawful employment practice by this subchapter”(opposition clause), or (2) “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter” (participation clause). The court granted the employer summary judgment, and the Sixth Circuit Court of Appeals affirmed, holding that the opposition clause demanded “active, consistent” opposing activities, whereas Crawford had not initiated any complaint prior to the investigation; and finding that the participation clause did not cover the employer's internal investigation because it was not conducted pursuant to a Title VII charge pending with the Equal Employment Opportunity Commission.

The Supreme Court reversed, holding that the anti-retaliation provision’s protection extends not only to employees who speak out about discrimination not on their own initiative, but also those who answer questions during an employer’s internal investigation.  The court reasoned that because “oppose” is undefined by the statute, it carries its ordinary dictionary meaning of resisting or contending against, and includes taking no action at all to advance a position beyond disclosing it.  Thus, a person can “oppose” by responding to someone else’s questions.  The court concluded that nothing in the statute requires a "freakish" rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when asked a question.

For Florida employers, Crawford is not groundbreaking, as the Eleventh Circuit had already indicated (if not expressly held) that an employee's participation in his employer's internal investigation is protected activity under the opposition clause of Title VII.  See EEOC v. Total Sys. Serv., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000).  But Crawford does clarify this point of law, and also makes clear that answering questions in the course of an investigation can constitute "opposition" just as surely as a complaint that triggers an internal investigation. 

On the other hand, Crawford does not change the rule in the Eleventh Circuit that to establish a prima facie case of retaliation under the opposition clause of Title VII, a plaintiff must show that she had a good faith, reasonable belief that the employer was engaged in unlawful employment practices. This standard has both a subjective and an objective component. A plaintiff must not only show that she subjectively (that is, in good faith) believed that her employer was engaged in unlawful employment practices, but also that her belief was objectively reasonable. See Little v. United Technologies, Carrier Transicold Division, 103 F.3d 956 (11th Cir. 1997).

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The Fourth District Court of Appeals has issued a revised opinion in Carsillo v. City of Lake Worth, which I reported on in September.  The result is the same under the revised opinion -- the FCRA prohibits pregnancy discrimination -- but the court has refined its analysis.  Or maybe refined is not the right term.... 

First, some background.  Some courts, including most recently John Antoon II, United States District Judge for the Middle District of Florida, in the case of Boone v. Total Renal Laboratories, Inc. (Case No. 6:08-cv-562-Orl-28KRS) (a case in which I represented the defendant, and which I reported on here) have held that the Florida Civil Rights Act does not prohibit pregnancy discrimination.  The logic of these decisions is as follows:  The Florida Human Rights Act (“FHRA”), which subsequently was reenacted and renamed the Florida Civil Rights Act, is patterned after Title VII. In General Electric Co. v. Gilbert, 429 U.S. 125, 136 (1976), the United States Supreme Court held that discrimination on the basis of pregnancy was not sex discrimination under Title VII. Thus, the FHRA did not prohibit pregnancy discrimination, either. In 1978, the PDA amended Title VII to define the phrases “because of sex” and “on the basis of sex” to include disparate treatment of women due to the condition of pregnancy. In 1992, the Florida legislature reenacted the FHRA and renamed it the “Florida Civil Rights Act.” But these amendments failed to include pregnancy as a protected category. Therefore, the FCRA does not prohibit pregnancy discrimination.

In Carsillo, the Fourth DCA rejected this argument, reasoning that "when Congress passed the PDA in 1978, it explained that it had intended to prohibit discrimination based on pregnancy when it enacted Title VII in 1964. Because it was the intent of Congress in 1964 to prohibit this discrimination, and ...we construe Florida statutes patterned after federal statutes in the same manner that the federal statutes are construed, it follows that the sex discrimination prohibited in Florida since 1972 included discrimination based on pregnancy."

I'm not sure this makes sense.  As noted above, the U.S. Supreme Court held in Gilbert that sex discrimination did not encompass pregnancy discrimination under the original version of Title VII.  Since the Florida Human Rights Act was patterned after the original version of Title VII, how is it relevant that Congress said after Gilbert that it had intended to include pregnancy discrimination within the scope of Title VII?  Regardless of Congress' intentions, the high court said that Title VII could not be so construed.  And, therefore, it seems to follow that neither can the the Florida Civil Rights Act, which was patterned after Title VII, and was never amended to include pregnancy discrimination. 

Oh well, as I predicted in September, it may take the Florida Supreme Court to resolve this issue. 

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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.

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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. 

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The Florida Civil Rights Act, unlike Title VII, does not prohibit pregnancy discrimination, according to a June 18, 2008 ruling by Judge John Antoon II, United States District Judge for the Middle District of Florida in Boone v. Total Renal Laboratories, Inc. (Case No. 6:08-cv-562-Orl-28KRS). Other courts have so ruled, though there is no unanimity of opinion on this issue. 

Here's the logic behind the argument that the FCRA does not prohibit pregnancy discrimination:  The Florida Human Rights Act (“FHRA”), which subsequently was reenacted and renamed the Florida Civil Rights Act, is patterned after Title VII. In General Electric Co. v. Gilbert, 429 U.S. 125, 136 (1976), the United States Supreme Court held that discrimination on the basis of pregnancy was not sex discrimination under Title VII. Thus, the FHRA did not prohibit pregnancy discrimination, either. In 1978, the PDA amended Title VII to define the phrases “because of sex” and “on the basis of sex” to include disparate treatment of women due to the condition of pregnancy. In 1992, the Florida legislature reenacted the FHRA and renamed it the “Florida Civil Rights Act.” But these amendments failed to include pregnancy as a protected category. Therefore, the FCRA does not prohibit pregnancy discrimination.

By the way, your humble correspondent and his colleague, Jennifer Poole, successfully defended the Boone case.

UPDATE:  The Daily Labor Report featured this case in its June 23rd edition. 

FURTHER UPDATE:  Employment Law 360 reported this case in its June 26th edition.  A copy of the article can be read here. 

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