The adverse effect on the employee must be subjective, as well as objective. Not only must the employee suffer from the harassment, but it is also required that a reasonable person in the shoes of the employee would likely have suffered from such conduct." Id. At 84. While the Dupont case involved a sustained, systematic history of abusive behavior, the Court also found that if the behavior was extreme enough, a finding of a hostile work environment was justified. In the case of ABC, the company should anticipate that Matthew's quid pro quo demand of Jane will be seen as severe conduct, even without other instances of harassing behavior towards females.
The final element requires a basis for holding the employer liable. Similar to the federal standard created by Faragher, Dupont requires that an employer fail to take prompt and adequate remedial measures, after receiving actual notice or constructive notice of the harassing behavior by a co-worker in order to find the employer liable. The Dupont court held that a span of two months from receiving actual notice by a supervisor and taking remedial action is not prompt and amounts to a failure to exercise reasonable care. The court also found that the employers remedial steps must include a complete investigation into the alleged harassment and that the steps be adequate to prevent further harassment of the employee. Id. At 87.
In Castleberry v. Chadbourne, 810 So.2d 1028 (Fla. 1st DCA 2002), the court found that the plaintiff has an affirmative obligation to avoid or minimize damages resulting from employment discrimination (citing Faragher). Id. At 1030. Thus, if ABC can show that it had a policy in place for Jane to seek redress and she failed to do so, her claim will likely be thrown out.
Finally, in Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981), the Florida Supreme Court held that an "employer may be held vicariously liable for acts of its employees for punitive damages if the acts of the employee are willful and wanton, and there is some basis to find fault on the part of the employer itself, independent of the employee's action." Id. At 549. However, in Harris v. L & L. Wings, Inc., 132 F.3d 978 (4th Cir.1997), a federal court determined that to sustain punitive damages, more than mere notice of the harassment must be established and that the key considerations included whether an employer responded adequately to harassment complaints, ignored its own harassment policy, moved the complaining employee to a less attractive job to avoid the harasser or utterly failed to respond to repeated complaints of pervasive sexual harassment. Id. At 982. This case was applied in Dupont to support an award of punitive damages against the convenience store. Dupont at 90.
Based on the foregoing, ABC is advised to immediately investigate Jane's allegations, to review and follow its own harassment policies and to avoid any conduct that could be seen as retaliatory (such as re-assigning Jane to a lesser position) or non-responsive (such as summarily or arbitrarily believing Matthew's version of what happened or was said). If Jane's allegations are true, Matthew should be required to attend training, he should no longer supervise Jane in any capacity and Jane's evaluation should be discarded and re-done. If any more than three or four weeks has elapsed since the incident, the company should also pursue a reasonable settlement of damages, as there is definite exposure under Florida's Civil Rights act.
IV. Conclusion: Matthew's behavior likely exposes ABC to damages based on Title VII of the federal law and Florida statute 760. However, assuming that 'recently' refers to within the last week or so, ABC still has an opportunity to take appropriate remedial measures and safeguard itself from civil liability. Therefore, as of right now, Jane will not prevail in her lawsuit.