To establish a claim of hostile work environment based on sexual harassment, an employee must establish that: (1) he or she belongs to a protected group, (2) he or she has been subject to unwelcome harassment, (3) the harassment complained of was based on his/her sex, (4) the harassment was sufficiently “severe or pervasive” to alter the terms and conditions of employment and create a discriminatory abusive work environment, and (5) a basis for holding his/her employer liable. Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999).
The first element is easily established as gender is a protected category. As to the second element, the incident must be unwelcome. To satisfy this element, there must be some evidence that the employee asked the alleged harasser to stop but the behavior continued. For the third element, the employee must show that the harassment was because of his/her sex.
The fourth element is generally the most challenging element for employees to meet. Behavior that creates a hostile work environment needs to be objectively severe to warrant legal action. The behavior must seriously impact and affect the employee’s terms or conditions of employment. Courts have found that to establish that harassment was sufficiently severe or pervasive to alter the terms or conditions of employment, an employee must prove that her work environment was both subjectively and objectively hostile. Courts generally find that employees meet their burden to show that the environment was subjectively hostile if they provide testimony that the situations or comments caused them stress and affected their work environment.
In reviewing the objective inquiry, courts consider four factors: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance. While these factors guide the analysis, courts must consider the totality of the circumstances.
For the fourth element, employees must provide some evidence that the conduct unreasonably interfered with their job performance. However, the Supreme Court “has cautioned that harassment need not be … so extreme that it produces tangible effects on job performance in order to be actionable.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1277 (11th Cir. 2002).