BY Donald J. Spero, Esq.

When an employee makes a claim of having suffered from a hostile work environment, whether it is due to sexual harassment or based on the claimants status in some other protected group. an essential issue is whether the employer knew or should have known of the facts giving rise to the hostile environment. The knowledge may come by participation or observation by an individual in the direct line of authority over the aggrieved employee. A partcularly troublesome situation arises when the claiming employee presents evidence of an environment where the hostile acts are so severe or pervasive that the employer may be found to have "constructive knowledge" of the harassment although it has no actual knowledge.

When it comes to defending hostile environment claims the best defense is a good defense. By now most employers know that they should have anti-harassment policies. The attached memorandum discusses the recent Eleventh Circuit case of Watson v. Blue Circle, Inc. In Watson the court found that the employer's anti-harassment policy was not sufficiently effective to protect it as a matter of law from a claim that it had constructive knowledge of facts allegedly giving rise to a sexually hostile environment. Because of poor implementation it was not a good defense. Employers will want to consider the factors that the court took into account in Watson as well as the other cases discussed in the memorandum to assure that they will not be subject to claims that they had constructive knowledge of a hostile employment environment.

I apply my more than three and one-half decades of employment law experience exclusively to serving as a neutral and speaking at employment law seminars. I mediate throughout most of Florida. I will welcome the opportunity to serve as a mediator on any occasion where you may have such a need. Early mediation can often be successful by allowing the parties to reach a resolution before positions have hardened and litigation expenses have mounted. The schedulers at Florida Mediation Group are available to contact the parties to arrange the time an place for mediations. Please also feel free to contact me directly.

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