Jason Anon*
In the wake of the #MeToo movement, the Harvey Weinstein scandal, and the recent sexual assault allegations made during Justice Brett Kavanaugh’s Senate Confirmation Hearings, there can be little doubt that sexual harassment has a profound impact on workplaces, careers, and employment.[1] However, in addition to the lessons that can be gleaned from social awareness and these high-profile cases, thought-provoking legal questions have yet to be definitively answered in the often factually melded work life/personal life realm of workplace sexual harassment.
Section 2000e-2 of Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of sex (among other protected categories) with respect to an individual’s “compensation, terms, conditions, or privileges of employment.”[2] And in 1986, the United States Supreme Court categorically instructed that sexual harassment that creates a hostile work environment is an actionable form of sex discrimination under Title VII.[3]
As a result, the easier question necessarily involves employee sexual harassment that occurs at the worksite itself or offsite at a work-related meeting or work-sponsored event.[4] On the other hand, however, the harder question asks whether employers should be liable for sexual harassment that occurs during offsite, nonwork-sponsored employee interactions.[5]
While there is not complete clarity or express unanimity on the issue, courts do provide some guidance. For example, some courts have explained that employers are generally not responsible under Title VII for employee sexual harassment resulting from off-premises, nonwork-related events.[6] Under those cases, it might appear that employers would be insulated from employee hostile work environment claims that arise out of sexual harassment that occurs during offsite, nonwork-sponsored employee interactions.
In reality, however, employers may actually be closer than they think to liability for such claims. Some of the same opinions generally insulating employers from liability for employee sexual harassment occurring at off-premises, nonwork-related events also articulate a “work nexus” test.[7] The “work nexus” test is merely a threshold level of factual sufficiency from which connection between the hostile sexual conduct and the employment can be inferred.[8] And in addition to this arguably easy test to satisfy, perhaps even further support for the consideration of offsite, nonwork-sponsored employee interactions in the hostile work environment sexual harassment question is the multitude of cases that consider such employee interactions in the analysis without even explicit mention of this work nexus threshold.[9]
Nonetheless, even if not generally actionable against employers, workplace sexual harassment arising out of offsite, nonwork-sponsored employee interactions should be much less likely to persist in light of the legal incentives driving employers to target and ferret out such harassment. In short, these incentives not only include (1) as set forth above, the simple risk of likelihood that a plaintiff employee would be able to articulate a “work nexus” beyond the threshold level to connect his/her harassment to his/her employment, but also (2) the possibility of staving off liability, at least in the supervisor-harasser context, by safeguarding the Faragher portion of the Faragher-Ellerth Defense (i.e. maintaining employer reasonableness in proper remedial action to prevent and promptly correct sexual harassment behavior).[10]
And as always, if legal measures ultimately prove deficient, the current trend in corporate accountability and social responsibility seems capable of picking up the slack in the fight against workplace sexual harassment. Along these lines, it would be easy in 2018 to imagine the social media outcry and negative company publicity that would result from a hypothetical Google or Disney corporate announcement constructively signaling the following: “Because we are not legally required to do anything about it, we will be openly disregarding offsite, nonwork-sponsored employee sexual harassment. Thank you for your cooperation!”
* J.D. candidate, 2019, Florida International University College of Law; Judicial Intern to the Honorable Robin S. Rosenbaum of the United States Court of Appeals for the Eleventh Circuit; Law Clerk, Jackson Lewis P.C.
[1] See generally Anna North, The #MeToo movement and Its Evolution, Explained, Vox (Oct. 9, 2018, 12:30 PM), https://www.vox.com/identities/2018/10/9/17933746/me-too-movement-metoo-brett-kavanaugh-weinstein.
[2] 42 U.S.C. § 2000e-2 (2018).
[3] Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986).
[4] See Vill. of Tequesta v. Luscavich, Nos. 4D16-2432 and 4D16-4081, 2018 Fla. App. LEXIS 3338, at *16 (Fla. Dist. Ct. App. Mar. 7, 2018) (“[M]ost of the federal cases addressing Title VII sexual harassment and retaliation claims discuss fact patterns involving instances of verbal or physical sexual behavior by a supervisor at a jobsite or off-premises work event.”) (emphasis added).
[5] See id. at *16–17 (“None of the federal opinions specifically address an argument about how the location or event context of the sexual behavior impacts the analysis.”) (emphasis added).
[6] See Duggins ex rel. Duggins v. Steak’N Shake, Inc., 3 F. App’x 302, 311 (6th Cir. 2001); Candelore v. Clark Cty. Sanitation Dist., 975 F.2d 588, 590 (9th Cir. 1992); Harris v. Surrey Vacation Resorts, Inc., No. 06-3334-CV-S-GAF, 2008 U.S. Dist. LEXIS 56331, at *20 (W.D. Mo. July 24, 2008); Meece v. Atl. Se. Airlines, Inc., No. 1:04-cv-3698-WSD-ECS, 2006 U.S. Dist. LEXIS 56435, at *6 (N.D. Ga. Aug. 2, 2006); P.F. v. Delta Air Lines, Inc., 102 F. Supp. 2d 132, 138 (E.D.N.Y. 2000).
[7] See Harris, 2008 U.S. Dist. LEXIS 56331, at *20; Meece, 2006 U.S. Dist. LEXIS 56435, at *6; Fox v. Pittsburg State Univ., 257 F. Supp. 3d 1112, 1141 (D. Kan. 2017) (recognizing that an “off-campus and after-hours incident certainly had a work nexus”) (emphasis added).
[8] See Meece, 2006 U.S. Dist. LEXIS 56435, at *6; Fox, 257 F. Supp. 3d at 1141; Harris, 2008 U.S. Dist. LEXIS 56331, at *20.
[9] See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 60, 66 (1986) (acknowledging existence of hostile work environment sexual harassment under Title VII in a case where a supervisor/coworker invited an employee to dinner and suggested during the course of the meal that they go to a motel to have sexual relations); Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 584–86 (11th Cir. 2000) (considering supervisor’s frequent calls to employee’s house at night to ask personal questions such as “Are you in bed yet?,” “I was wondering how you were doing?,” and “Are you talking to your boyfriend?”); Weiss v. Coca-Cola Bottling Co. of Chi., 990 F.2d 333, 337 (7th Cir. 1993) (considering, inter alia, supervisor’s attempt to kiss employee at a bar); Smith v. Am. Online, Inc., 499 F. Supp. 2d 1251, 1261 (M.D. Fla. 2007) (harassing conduct consisted of, among other things, supervisor’s comment to employee at the movies, “Damn, you clean up good” and attempt to hug and kiss employee in a restaurant parking lot); Vill. of Tequesta v. Luscavich, Nos. 4D16-2432 and 4D16-4081, 2018 Fla. App. LEXIS 3338, at *16 (Fla. Dist. Ct. App. Mar. 7, 2018) (considering sexual conduct that occurred at a private, nonwork-sponsored party in which coworkers were gathered to celebrate a fellow employee’s promotion).
[10] See generally Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
The Legal Landscape Surrounding Workplace Sexual Harassment and Offsite, Nonwork-Sponsored Employee Interactions
