The Eleventh Circuit today remanded back to the trial court a challenge to The Florida Bar advertising rules holding that the trial court improperly granted summary judgment for The Florida Bar.
The court held that the lawyer challenging the Bar Rules “has made a sufficiently credible showing that the rules are unconstitutionally vague on their face; if they are, we decline to let the Bar ‘hammer[] [them] out case by case and thereby ‘provide [them] with a patina’ of determinacy. Eaves, 601 F.2d at 822 (citation omitted). The district court should hear these claims now.”
In Howard v. Walgreen Co., the Eleventh Circuit held that that despite the fact a jury awarded the plaintiff $300,000 in damages, no reasonable jury could find for the plaintiff. I have difficulty understanding how a group of judges who didn’t hear the evidence could decide that the jury that awarded $300,000 to the plaintiff was not reasonable.
The basis of the holding was the Eleventh Circuit’s determination that a voicemail message from a supervisor threatening to fire the employee was not an adverse action.
On Friday, The Eleventh Circuit upheld a sexual harassment jury verdict against the Florida Department of Corrections. In Beckford v. Fla. Department of Corrections, female employees were subject to rather explicit sexual harassment by prison inmates, including something called “gunning” (I will let you read the opinion for that definition). The employees repeatedly complained to prison management and even suggested remedial measures that could be taken. When the prison failed to take action to prevent the behavior, the employees brought a lawsuit claiming they were subject to a hostile work environment.
The Eleventh Circuit found
[t]itle VII required the Department to adopt reasonable remedial measures to protect its female employees from the sexually hostile environment that the inmates created. The jury was entitled to find that the Department made almost no effort to protect its employees from this sex-based harassment.
Notably, the Eleventh Circuit found that the Department of Corrections could not assert a Faragher defense, which allows employers to avoid vicarious liability by asserting that “the Department exercised reasonable care to prevent or promptly correct any sexual harassment and the employees unreasonably failed to take advantage of any preventive or corrective opportunities provided.”
The Court held that a Faragher defense was not available here because it is limited to situations where the sexual harassment involves supervisors and not third parties.
When, as here, employees complain of harassment by someone other than a supervisor, the Faragher defense does not apply.
To read the full opinion, written by Judge Pryor, click here.