News / Blog

In recent months, the topic of sexual harassment has come to the forefront of the news, primarily due to the revelations of misconduct by several powerful figures in the entertainment industry and politics. While the increased attention to this issue is beneficial, the media often fails to accurately and adequately describe the law, or the legal procedures, relating to sexual harassment in the workplace.

In the “court of public opinion,” there is ostensibly no time limit within which an allegation must be made, the definition of sexual harassment can be very broad, and consequences can be visited upon the accused without formal legal process. The legal system, which governs these issues outside the world of celebrities, is far more rigid. For this reason, it is important that both employees and employers be made aware of some key aspects of sexual harassment law.

First and foremost, not all offensive conduct of a sexual nature is deemed to be actionable sexual harassment. In determining whether that line has been crossed, the law asks three questions: The first is whether the employee considered the conduct offensive and unwelcome (the “subjective” test). The second is whether a reasonable employee would also find the conduct offensive and unwelcome (the “objective test”). The third is whether the conduct was severe or pervasive (as opposed to minor and consisting of isolated incidents).

If, in answering these questions, the conduct is found to qualify as sexual harassment, the employer is not automatically liable. Rather, in most cases, if the employer maintains a policy prohibiting harassment in the workplace, the employee must first attempt to seek a remedy internally by reporting the conduct to the employer. If the employer takes prompt action and corrects the problem, it is typically insulated from liability. If the employer fails to do so (allowing the harassment to continue), or if it retaliates against the employee who complained, significant liability can result.

The legal system, unlike the “court of public opinion,” has strict time limits. To preserve a claim of sexual harassment (not involving a tort such as assault and battery), an employee must file a charge of discrimination with the federal Equal Employment Opportunity Commission (EEOC) within three hundred days, or with the state Florida Commission on Human Relations (FCHR) within three hundred sixty five days, of the unlawful conduct.

From a practical standpoint, the best advice that can be given to both employees and employers is to get ahead of the issue. Employees should utilize the available reporting mechanisms provided by their employer “early and often.” While this can be an extremely daunting task, in our experience, this is the surest way for an employee to protect and, ultimately, vindicate their rights. We routinely assist employees through this difficult process.

Similarly, employers should adopt an “ounce of prevention is worth a pound of cure” approach. By creating and disseminating a clear and comprehensive anti-harassment policy, and by addressing complaints with a prompt and thorough investigation and, where necessary, disciplinary action, an employer can reduce the likelihood that a rogue manager will saddle the company with significant liability. Our attorneys provide guidance to employers in this crucial aspect of employee relations as well.

Workplace harassment, unfortunately, remains a serious problem. Contrary to the media’s implication, however, the legal principles that address this issue have been in place for decades. Simply stated, it’s not new to us. We welcome the opportunity to assist you in navigating this system.

In November 2016, the Florida Medical Marijuana Initiative, also known as Amendment 2, was approved by voters, leading to the legalization of marijuana for medical use. As the prescription and usage of marijuana becomes more commonplace, the question of how this law impacts the workplace is also becoming more prevalent.

Simply stated, the question that is being asked more and more frequently is, can an employer take any adverse action against an employee who is legally using marijuana for medical purposes with a prescription?

The most effective way to answer this complicated question is to divide the response into two parts. The first is how the law addresses impairment due to marijuana use, while the other is how the law addresses mere usage without impairment.

The law has not changed when it comes to impairment. An employee who comes to work impaired may be subject to drug and alcohol screening and disciplinary action. This is true whether the employee is impaired due to the use of legal substances, such as alcohol or prescription medications, or due to the use of unlawful substances.

Of course, the question of whether an employee is “impaired” is not always simple. Certainly, employees in safety-sensitive positions, such as first responders, machinery operators, or anyone who drives a motor vehicle as part of his or her job, will be deemed “impaired” if they have any substance in their system that might cause drowsiness, impact motor functions, or cause intoxication. For an employee with a desk job, the threshold is lower, though an employer still has an unchallenged right to mandate that its employees refrain from reporting to work with any diminished capacity resulting from the use (lawful or unlawful) of drugs or alcohol.

The more difficult questions arise where an employer learns of marijuana usage that does not result in impairment. For example, if an employer detects marijuana usage during a random drug screening, can it take an adverse action against the employee if the marijuana was prescribed by a physician and it causes no impairment during working hours?

The answer may be a bit surprising. Currently, an employee who is fired for legally using medical marijuana in Florida may not have a claim. The reason is technical, rather than logical. The primary law that protect employees who are undergoing medical treatment is the Americans with Disabilities Act (ADA). This is a federal law and, as a result, it defines the term “legal drug use” under federal narcotics legislation. Unlike Florida’s state law, federal law continues to regard all marijuana use as unlawful.

This issue, however, is certainly far from being fully resolved. Both the courts and the legislatures (state and federal) have the power to reconcile these laws in a manner that provides greater protection to employees using marijuana for medical purposes. Employers and employees should continue to monitor this issue, both in the media and here on our blog.

For additional information regarding employment law matters, please click on the following link contact us from our contact page.