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One-Time Sexual Advance and Retaliation Claims

On March 7th, Florida’s Fourth District Court of Appeals held that a supervisor’s one-time sexual advance out of the workplace can meet requirements to pursue a retaliation claim under Florida law, in a ruling that called for a new trial in a police dispatcher’s suit claiming a local police chief lashed out after she declined his advances.

“The employee clearly opposed the chief’s physical advances … by saying that she thought it was wrong to engage in sex with him and by exiting the room immediately after the chief grabbed her hand and put it on his (pants),” wrote Judge Burton Conner in an opinion that was joined by two other judges.

However, he wrote, a new trial must be held because of a new, tougher standard the West Palm Beach-based court has embraced in employment retaliation cases.  In the past, it would have been sufficient for the jury to find that Luscavich was denied promotions after she spurned Pitocchelli’s advances. However, as a result of a ruling last year, it now requires a jury to find that the two were inextricably related. In the ruling, it said it adopted the stricter standard to comply with a 2013 ruling by the U.S. Supreme Court. Specifically, the 16 page opinion states:

“In Wright we followed the long-standing rule of statutory construction that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as given to the federal act in the federal courts.  Wright, 217 So. 3d at164-65.  Thus, because the Supreme Court changed the causation standard for Title VII retaliation claims in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), to but-for causation, we  receded  from  the  “wholly unrelated”  standard  used  in  the  Eleventh  Circuit and this District.”