One Act is One Too Many: A One-Time Sexual Advance by a Coworker may Constitute an Unlawful Employment Practice
In the wake of the #MeToo movement, we have all heard the shocking stories of systematic and persistent sexual harassment in the workplace. But sometimes, the lines are not so clear. For example, what if a sexual advance is made by a coworker outside the office? What if the sexual conduct occurred on one isolated occasion, with no previously reported inappropriate behavior regarding this employee? According to a recent Florida 4th DCA opinion, a one-event, unwanted sexual advance to a coworker, even if it occurs at a private party not sponsored by the employer, may constitute an unlawful employment practice. See Village of Tequesta v. Tara Luscavich, Nos. 4D16–2432 and 4D16–4081, 2018 WL 1181285 (Fla. 4th DCA March 7, 2018).
In Village of Tequesta, Ms. Luscavich, a police dispatcher at the Village of Tequesta Police Department, attended a private party to celebrate the promotion of the village’s incoming chief of police. The party was held at the home of a coworker and was primarily attended by fellow employees. Ms. Luscavich alleged that she rejected unwanted sexual advances by the soon to be Chief of Police while at the party, which led to her suffering retaliation and other adverse employment actions.
The appellate court observed that the language of Title VII and the Florida Civil Rights Act is broad enough to encompass a one-event sexual contact as an unlawful employment practice if it is “severe or pervasive.” The Court ultimately 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.” The level of severity is a question for the jury.
In response to the employer’s argument that the action did not constitute “workplace” conduct, the Court also noted that where the sexual harassment took place was irrelevant if it resulted in an adverse employment action. The Court held that “such characteristics are unimportant…where the issue is whether a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands.” However, a jury may also consider the location and circumstances in determining whether conduct rises to the level of an unlawful employment practice.
As employers update their sexual harassment training in response to the #MeToo movement, this case provides some important lessons. Employees at all levels of an organization must understand:
A sexual advance involving just one incident can be an unlawful employment practice if it is severe.
A sexual advance by a supervisor can be an unlawful employment practice even if it occurs at a private, non-work sponsored event.