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Georgia Worker’s Case Based Upon Bulge in Co-Worker’s Pants was a Claim ‘Based on Sex,’ 11th Circuit Says

gavelA woman who felt harassed at her job by a male co-worker took a cell phone picture to document the harassment to which she was subjected. For that, the employer terminated not the male employee but the woman, alleging that she violated workplace policies regarding taking other employees’ pictures without permission. The evidence the woman had was enough to support a sexual harassment claim, even if it wasn’t enough for a retaliation claim, the 11th Circuit Court of Appeals recently decided.

Myra Furcron was having a problem with her job at Mail Centers Plus, Inc. Initially, she had tried to befriend a fellow employee, Daniel Seligman, who had just transferred to the mail and package receiving area where she worked. But Furcron soon feared that Seligman had mistaken friendliness for flirtation. Seligman began invading Furcron’s personal space. He also stared at her and was visibly aroused while doing so. Furcron also accused Seligman of bumping and rubbing against her while aroused.

At first, Furcron did not complain because Seligman had Asperger’s Syndrome, and she believed that his condition played a role in his behavior. Eventually, she did complain, but no action was taken. To bolster her assertions further, Furcron eventually snapped a photo of Seligman, from the neck down, which captured his aroused state at work. She did it to back up her claims of sexual harassment and to persuade the employer to take her concerns more seriously.

The employer, though, chose a different path. The employer suspended and ultimately terminated Furcron. Furcron, the employer asserted, had violated workplace policy by taking a “sexually suggestive” photo of a co-worker and showing it to other co-workers.

Furcron sued her former employer for sexual harassment and retaliation. Mail Centers did not fire her for the reasons it stated; it fired her in retaliation for her reporting sexual harassment, she claimed. The trial court disagreed and entered a summary judgment in favor of the employer. The employee, the court concluded, could not prove that the harassment was based on sex.

The employer appealed, and she won on her appeal of the harassment claim. In order to prove that the harassment one endures is harassment “based on sex,” an employee must show that, but for her gender, she would not have received the harassment she underwent. In Furcron’s case, she had evidence indicating that Seligman tried to look down her clothes, bumped up against her while aroused, and stared at her while visibly aroused. These items were definitely enough to allow a reasonable jury at least to contemplate and infer that Seligman’s behavior toward Furcron was based on sex.

The appeals court upheld the summary judgment on the retaliation claim. In order to win on a retaliation claim, an employee must prove that the employer’s non-discriminatory reason for acting was a mere pretext. In her case, while Furcron argued extensively about the events surrounding her decision to photograph Seligman, she never established that what she did was not, in fact, a valid case of her violating the employer’s harassment policy. Since her case never defeated the claim that she did, in fact, violate company policies, the employer’s reason could not be considered a mere pretext.

If you are an employee in Georgia, and you’ve been a victim of sexual harassment at work, you need skilled employment counsel on your side. Contact the diligent Georgia sexual harassment attorneys at Mays & Kerr. Our attorneys have the knowledge, skills, and determination to help you in the pursuit of your case. To speak with one of our lawyers about your case, call 1-877-986-5529.

More blog posts:

Sixth Circuit Upholds Ruling for Employer in Harassment Case Arising from Two Unwanted Sex-Related Texts, Atlanta Employment Attorneys Blog, Sept. 28, 2016

Tennessee Warehouse Workers’ Complaints to Supervisor about Harassment Enough to Support Title VII Case, Atlanta Employment Attorneys Blog, Oct. 14, 2015