11th Circuit Sexual Harrassment To Be ReHeard

In a surprise decision, the 11th circuit has decided to rehear a claim for alleged sexual harassment and retaliationCorbitt v. Home Depot involves two men who claim that a male human resources manager made unwanted sexual advances toward the men. When they complained, the men were allegedly fired in retaliation.

Last August the 11th Circuit Court of Appeals, which encompasses Georgia, determined that the men’s claims of sexual harassment were not sufficiently severe or pervasive to constitute sexual harassment under Title VII.

The specific actions complained of included unwanted sexual advances, inappropriate comments over the phone and in person, massages and suggestive comments. They also allege that the human resources manager rubbed up against them when they hugged.

The 11th Circuit issued a revised opinion in December, confirming the dismissal of the sexual harassment claims. However, the retaliation claims were not dismissed.
In March, the court issued an order vacating its previous opinion and requesting an en banc hearing,

Although its impossible to know what the ultimate outcome will be, it seems likely that some of the initial holding will be reversed or modified, and possibly change what constitutes sexual harassment in the 11th circuit. If the dismissal is reversed, the men will be allowed to proceed with their lawsuit.

In the 11th Circuit, in order to prove sexual harassment, you must show that you have been subject to unwelcome conduct that is “sufficiently severe and pervasive” to alter the terms and conditions of your employment.

Generally if you are subject to constant unwelcome and offensive conduct that’s sexual in nature and you complain to your boss, and your boss fails to act, you may have a strong claim of sexual harassment. Each case is different and whether particular actions rise to the level of sexual harassment is determined on a case-by-case basis.

As Georgia employment lawyers, we will be watching this case closely to see if, and how, the 11th circuit modifies or reverses its decision. If the decision is reversed, it could significantly impact what actions are considered “sexual harassment” in Georgia and throughout the 11th circuit.