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Severe and Pervasive: Pay Attention to Your State’s Sexual Harassment Standard

A Georgia EMT sued her former employer, alleging sexual harassment and retaliation in violation of Title VII. Plaintiff alleged that sexual comments during the four months created a hostile environment. The comments included an owner calling Plaintiff attractive, saying he loved chocolate milk in apparent reference to her in a text that also included images of “tongue” emojis, and asking about her sex life with her boyfriend. Despite these comments, the lawsuit was dismissed and affirmed by the Eleventh Circuit.  D’Marius Allen v. Ambu-Stat LLC.  The Circuit Court concluded that the alleged comments, even if true, did not rise to the level of “severe or pervasive.” Moreover, the Court held that isolated comments, spread over four months, could not be described as frequent.

While this decision could be considered a “win” for employers, it is important to note that under certain recently adopted state laws, the result may be different. For example, the “severe and pervasive” standard has been eliminated (and replaced with a far lower, easier to satisfy standard) in New York. Consequently, had this plaintiff been working in New York, the Court may have reached a different conclusion.

In light of the #MeToo movement, employers should continue to stay informed of changes in the law and train supervisors accordingly.

This post was written by Jenna E. Dysart.

Jackson Lewis P.C. © 2020

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Jackson Lewis is a law firm that offers legal advice to employers through the many laws that impact on every aspect of an employer’s decision and ability to develop and implement a strategic, comprehensive preventive labor relations program. We provide labor advice to all employers – whether entirely unionized, entirely union-free or partially unionized – in every industry.

While the National Labor Relations Act has always applied to employees regardless of union representation, the Board’s decisions and initiatives in the...

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