On May 24, 2000, the Supreme Court of Florida accepted jurisdiction of Alina Guerra v. City of Miami Beach.  This groundbreaking case will decide whether employers can be liable for common law negligence for workplace  sexual harassment.  Currently, no jurisdiction allows recovery under this theory.

FACTS:

Alina Guerra was a communications division employee of the Miami Beach Police Department.  Ms. Guerra complained to her supervisor of workplace sexual harassment activity that allegedly occurred in the early 1990s.  An investigation was undertaken that confirmed a violation of the City’s sexual harassment policy.  However, no recommendations were made as a result of the investigation.  Ms. Guerra was fired during the year long investigation for missing too much work.

Ms. Guerra failed to file sexual harassment charges against the City with the Equal Employment Opportunity Commission and other appropriate administrative agencies and therefore was barred from bringing a claim for sexual harassment under federal or state statutes granting such protection.  As a result of failing to bring the charges through the traditional routes,  Ms. Guerra engaged an attorney who filed a one count complaint against the City alleging she had been subjected to a pattern of sexual harassment on the theory of negligence.  The jury award Ms. Guerra $275,000.00, minus 25% representing her negligence.

The City of Miami Beach appealed from the Trial Court’s decision to the Florida Court of Appeal.  The Court of Appeal, in overturning the trial court’s ruling, held: “. . . since the only count contained in Ms. Guerra’s complaint is for a cause of action that does not exist [sexual harassment based on negligence], the final judgment is reversed”.  746 So. 2d at 1160.

The Florida Supreme Court has accepted to hear the case and scheduled oral argument for November 28, 2000.

Commentary:

With the trend of the courts continually broadening employee rights, it is conceivable that the Florida Supreme Court will overturn the Court of Appeal and reinstate the Trial Court’s jury award.  Thereby, now allowing employees to sue their employers for negligence in not providing a safe work place and protection from a hostile environment.  Consequently, the negligence theory of punitive damages and contributory negligence as well as the evidentiary issues of negligence will all come into issue and possibly change how sexual harassment complaints are plead and defended.